Public Bill Committee

[Mr. Eric Illsley in the Chair]

Clause 143

Planning obligations

Amendment proposed [this day]: No. 421, in clause 143, page 66, line 8, at end insert—
‘(za) in subsection (1) delete the words “interested in land in the area of a local planning authority”;’.—[Robert Neill.]

Question again proposed, That the amendment be made.

John Healey: Welcome back, Mr. Illsley. I am glad to see that you are in rude health.
I was setting out the way in which an obligation is formally registered as a land charge. It serves as a permanent restriction on the land, whereby that planning obligation will transfer to any successor in title who owns that land. The amendment would remove the need for a person to be interested in land in order to conclude a planning obligation with the local authority. Therefore, the planning obligation, which hon. Members are concerned about, would not attach to particular land in the way that it currently does under section 106 of the Town and Country Planning Act 1990.
I began my remarks by saying that I have some sympathy with the proposal and recognise that this concern has been raised by practitioners. I recognise that under section 106, a developer who is seeking to acquire an interest in land through a compulsory purchase order cannot enter into a planning obligation, while at the same time the existence of a planning obligation may be an important factor in deciding whether a local planning authority grants that planning permission in the first place.
In practice, the way through that problem is generally that the developer negotiates the terms of the section 106 obligation before acquiring the land and submits in draft for the approval of a local planning authority. The planning authority then comes to a preliminary view on the application and indicates whether it is minded to approve the application, subject to a prior completion of a planning obligation. Assuming that it is minded to grant consent, the applicant then goes about securing an interest in the land, which can take the form of a legal option to purchase the land, subject to the planning permission being granted. Often, in such circumstances, those three elements are brought together and concluded simultaneously.
Although that process can be cumbersome, the alternative approach that would be put in place by the amendment, not just for major infrastructure projects under the infrastructure planning commission but much more widely under the Town and Country Planning Act system, would cause more problems than it would solve. The mechanism of a planning obligation relies on a charge being placed on the land, which makes the terms of the obligation enforceable against subsequent owners of it. That works because any prospective purchaser gets notice of the planning obligation before buying the land and is fully aware of the burdens or responsibilities that come with it. At the same time, the purchaser gets the benefit of the planning permission issued in relation to the planning obligation.
In contrast to that, the amendment would allow persons to enter into planning obligations even when they do not own an interest in the land in question. It would therefore be impossible to place a land charge on the land. That would make enforcement increasingly problematic, particularly if there was a change of ownership. A planning obligation in those circumstances would be more like a personal contract that is enforceable against the original parties but would not be passed on to subsequent land owners.
Although I accept that the procedures that are necessary under the existing section 106 terms can be rather awkward, the answer is not to alter fundamentally the nature of a planning obligation from a covenant attached to the land to a contract that is more personal in nature. I hope that I have given the hon. Member for Bromley and Chislehurst sufficient reassurance and that he will withdraw the amendment.

Bob Neill: Welcome back, Mr. Illsley. I hope that things are improving vocally for you. I am grateful to the Minister for his full explanation. That is helpful. I will obviously speak to those who have raised concerns with me. We are all agreed about what we want to achieve. Perhaps everything will be sorted out before Report so that everybody is satisfied. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 143 ordered to stand part of the Bill.

Clause 144

Blighted land: England and Wales

John Healey: I beg to move amendment No. 445, in clause 144, page 67, line 30, at end insert—
‘(2A) In section 150(1)(b) (notices requiring purchase of blighted land)—
(a) for “21 or” insert “21,”,
(b) after “notes)” insert “or paragraph 24”, and
(c) after “Schedule 13 and” insert “(except in the case of land falling within paragraph 24(c) of that Schedule)”.
(2B) After section 165 (power of Secretary of State to acquire land affected by orders relating to new towns etc. where blight notice served) insert—
“165A Power of Secretary of State to acquire land identified in national policy statements where blight notice served
Where a blight notice has been served in respect of land falling within paragraph 25 of Schedule 13, the Secretary of State has power to acquire compulsorily any interest in the land in pursuance of the blight notice served by virtue of that paragraph.”

Eric Illsley: With this it will be convenient to discuss Government amendment No. 446.

John Healey: These two amendments are technical amendments for the purposes of what might be termed integrating new categories of blight within the general blight provisions of the Town and Country Planning Act. A national policy statement which identifies a location as either suitable or potentially suitable for a big infrastructure project may, of course, create blight at that location, reducing land values and making it harder to sell the land. Blight may also result from an application being made for an order granting development consent, which authorises the compulsory acquisition of the land through the IPC. This clause is therefore intended to enable people in those circumstances to gain access to the normal provisions set out in statute in the Town and Country Planning Act. Those are provisions whereby people whose land is blighted can obtain compensation. The amendments make a couple of changes that are needed to make that work properly.
Amendment No. 445 gives the Secretary of State the power to acquire land when a valid blight notice is served as a result of a national policy statement. Having the power in practice means that the Secretary of State is obliged to purchase the land when a valid blight notice is served. Without the amendment, there would be no one to whom the owners of the land could sell their land. Amendment No. 446 is another technical amendment which identifies the appropriate enactment. Essentially it ensures that people would get the compensation to which they should be entitled for any loss in the value of their property due to blight. It allows us to define the appropriate enactment for compensation in the case of national policy statements and nationally significant infrastructure projects. Both amendments are important. They ensure that we get the framework right. I commend them to the Committee.

Bob Neill: We do not have a problem with these amendments. They are sensible. I reassure the Minister that I will not put out a press release about the increase in the amount of blight.

Amendment agreed to.

Amendment made: No. 446, in clause 144, page 67, line 34, at end insert—
‘(3A) In section 170 (“appropriate enactment” for purposes of Chapter 2) after subsection (8) insert—
“(8A) In relation to land falling within paragraph 24(a) or (b) of that Schedule, “the appropriate enactment” is the enactment which, by virtue of the order granting development consent, provides or is treated as providing for the compulsory acquisition of the land.
(8B) In relation to land falling within paragraph 24(c) of that Schedule, “the appropriate enactment” is the enactment which, if the order applied for were made, would provide or be treated as providing for the compulsory acquisition of the land.
(8C) In relation to land falling within paragraph 25 of that Schedule, “the appropriate enactment” is section 165A.”’.—[John Healey.]

Clause 144, as amended, ordered to stand part of the Bill.

Clause 145 ordered to stand part of the Bill.

Clause 146

Local development documents

Daniel Rogerson: I beg to move amendment No. 571, in clause 146, page 69, line 18, leave out paragraph (a).

Eric Illsley: With this it will be convenient to discuss amendment No. 572, in clause 146, page 69, line 40, leave out paragraph (c).

Daniel Rogerson: I welcome you back to the Chair, Mr. Illsley, for round 10 of our detailed deliberations on the Bill. The amendments were suggested to me by the Guide Dogs for the Blind Association and concern the provisions for consultation on local development documents. That organisation is concerned that some of the consultations up to now have not borne fruit in amending important documents. The system has not worked as well as it would have liked and it would be even worse to remove those provisions altogether, as is proposed in the Bill.
The amendments would protect the provisions for consultation that have been won in the past. I am interested to hear what the Minister has to say about the concerns of the Guide Dogs for the Blind Association on how people’s views have not been taken into account, in particular those who have visual impairments and have particular needs for the built environment to cater for them.

Parmjit Dhanda: Thank you, Mr. Illsley. It is good to see you back in—[ Interruption. ] I was going to say in fine fettle, but it is good to see you in fine-ish fettle.
I hope to be able to give the hon. Member for North Cornwall some reassurance on our ongoing commitment to consultation with the public. The amendments would change the proposed amendment of the Planning and Compulsory Purchase Act 2004 under the clause so that statements of community involvement remain subject to public examination. How best we carry out public examination is the key to this issue. In practice, examination is done by the Planning Inspectorate.
The first reason for wishing to remove the public examination of statements of community involvement is that the process is very costly and time-consuming for local authorities. That is not the main reason, but it is a reason. They should be getting on with genuine engagement with the community and not preparing for legalistic hearings or written representations with the Planning Inspectorate, which local authorities tell us they are invariably doing at the moment. The process also takes up a great deal of inspectorate resources. Most importantly, the Planning Inspectorate is not the best organisation to assess community engagement.
Officials are in discussion with the Audit Commission to see how the proposed comprehensive area assessment process will assess engagement overall. I think that that might be a better way forward. We want to see community engagement joined up across the local authority to reduce duplication and make matters easier for the public to understand. A joined-up strategy for this matter would be sensible, rather than having different compartments. Having a separate public examination for planning matters is something of a hindrance. With that reassurance, I hope that the hon. Member for North Cornwall will withdraw the amendment.

Daniel Rogerson: I will not press the amendment to a vote, but I hope that the Minister will reflect on the sentiments that have been expressed by one group, which has seen fit to contact members of the Committee with its concerns. No doubt there are many others, representing many people across the country, who feel that there are shortcomings in the consultation procedure. The Minister has set out ways in which he feels that the process can be made more effective but remain meaningful. With those assurances and on the basis that that is delivered, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Jacqui Lait: I beg to move amendment No. 427, in clause 146, page 70, line 13, at end insert—
‘(6A) After section 37 insert—
“37A Primacy of national policy statements
National policy statements shall take precedence of all other planning documents or planning guidance.”’.
I shall try not to tax your voice too much, Mr. Illsley.
The somewhat draconian, as it reads, amendment is intended to tease out from the Government another aspect of national policy statements, which we have already indicated that we approve of in principle. We have previously had a debate on consistency between national policy statements, planning policy statements and planning policy guidance. The purpose of the amendment is to get the Government’s view on how local development plans will fit into the national policy statement framework, and which, in their view, will take primacy.
If local people and local authorities spend a great deal of time developing a local development plan—amendments have been tabled to try to streamline that system, because the Government’s Act has not delivered the development plans with the speed that they wanted—which then collides with an infrastructure project, to which they have rooted objections, the local development framework will not necessarily fit nicely into the national policy statement. I hope that the Government have thought that through. We have tabled the amendment so that they can share their thoughts with us on which would win: local communities or the Government?

Parmjit Dhanda: I hope that everyone can be a winner. I do not think that the hon. Member for Beckenham’s amendment is draconian; it asks some fair questions about how everything fits together, and I will attempt to make that clearer in the next few minutes.
The amendment proposes to amend the Planning and Compulsory Purchase Act 2004 to give precedence in the town and country planning system to national policy statements over all other planning documents or guidance. That is why the hon. Lady was suggesting that it was perhaps draconian, but that is what it does.
Were the intention of the amendment to facilitate the progress of renewable projects through the town and country planning system, which it is not—although, reading through it, it could have been—I would have had some sympathy for the outcome. But I consider that the amendment would be inappropriate and unnecessary.
Under the town and country planning system, there is already a statutory requirement for regional planning bodies and local planning authorities to have regard to national policies and guidance when preparing their local development plans. Therefore, under the Bill, once a national policy statement is published it should be fully reflected in relevant development plans, regional spatial strategies and local development frameworks.
Under the town and country planning system, planning authorities decide on applications in accordance with the development plan, unless material considerations dictate otherwise. That means that the relevant national policy statement would influence local authority decisions below the threshold for the IPC, if it contained policy that applied to infrastructure generally, and not solely to nationally significant developments. Decisions by the relevant authority on any non-nationally significant infrastructure projects would be made in accordance with the development plan, which would need to reflect national policy, including the relevant national policy statement.

Jacqui Lait: I perceive a circular argument here. Given that it will take some time for national policy statements to be put in place and that part of the purpose of the Bill is to speed up the local development framework process, if a local authority area is affected by a big infrastructure project, as foreseen under the national policy statements, will it have to assume that it will have an infrastructure project without knowing, or will it have to start going through it again? Would an infrastructure project not be regarded as significant enough for the LDF to be redrawn, given that a lot of the amendments would make minor changes to the LDF, so that the whole process would not have to open again? I hope that the Minister sees why I am saying that it is a slightly circular argument, and it would be useful if we could break the circle.

Parmjit Dhanda: It is important to get across that local development plans need to consider everything in the national policy statement—I hope that I am getting that across to the hon. Member for Beckenham. Perhaps her perspective is that the two must be in conflict with each other. From my experience of local development plans, they are not some kind of one-hit wonder, but evolve over time, and it is really important that they evolve with consideration.
The hon. Lady has been quite specific about the possibility of a nationally significant infrastructure project within a locality and how the two fit together. I agree with her that it is important for that to be taken into consideration, and I am sure that local authorities will want to do so as part of their local development plans. In short, existing arrangements will ensure that national policy statements are taken into account when deciding relevant planning applications. I hope that that is of help to the hon. Lady and that she will withdraw her amendment.

Jacqui Lait: The best thing to say is that that gives us food for thought, and we might come back to it on a future occasion. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 146 ordered to stand part of the Bill.

Clause 147

Development plan documents: climate change policies

Question proposed, That the clause stand part of the Bill.

Jacqui Lait: We have raised on a number of occasions the importance of flood defence and the need to take it into account in future planning. On major projects and locally, we are at considerable risk from flooding, as we have seen this summer and again more recently, and much of the problem has been caused because the drainage system has not been able to cope sufficiently. Although Committee members will take it as read that sufficient precautions should be taken in all future plans to ensure that our drainage systems are adequate, given the importance of the perceived threat from flooding, it would be useful and sensible for the Bill to include references to flood defence and drainage. Would the Government be prepared to do that at this stage?

Parmjit Dhanda: I appreciate the hon. Lady’s question, not least because I am the Member of Parliament for Gloucester, but I do not think that adding such a provision to clause 147 would be pertinent, especially when a great deal of work is taking place, led largely by my hon. Friend the Minister for Local Government, who works hard on the issue of flooding. At the same time, policy is evolving around the Pitt review. Clause 147 is important, not least because of its reference to a planning policy statement on climate change. Although I take the hon. Lady’s comments on board, it would not be pertinent to include such a provision in the clause, which I hope will stand part of the Bill.

Question put and agreed to.

Clause 147 ordered to stand part of the Bill.

Clauses 148 and 149 ordered to stand part of the Bill.

Clause 150

Determination of planning applications by officers

Parmjit Dhanda: I beg to move amendment No. 447, in clause 150, page 72, line 16, leave out ‘under subsection (1)(a)’ and insert ‘by them under this section’.

Eric Illsley: With this it will be convenient to discuss the following Government amendments: Nos. 448 to 450, 457 to 460 and 467 to 470.

Parmjit Dhanda: The amendments make minor changes and corrections to help to improve the drafting of the Bill.

Amendment agreed to.

Amendments made: No. 448, in clause 150, page 72, line 19, leave out ‘subsection (1)(a)’ and insert ‘this section’.
No. 449, in clause 150, page 72, line 25, leave out ‘subsection (1)(a)’ and insert ‘this section’.
No. 450, in clause 150, page 72, line 44, leave out ‘subsection (1)(a) of’.—[Mr. Dhanda.]

Parmjit Dhanda: I beg to move amendment No. 451, in clause 150, page 73, line 20, after ‘application’ insert—
‘(a) ’.

Eric Illsley: With this it will be convenient to discuss the following Government amendments: Nos. 452, 461, 462, 471 and 472.

Parmjit Dhanda: Again, the amendments make minor changes and corrections to help to improve the drafting of the Bill. I appreciate that in chapter 2 of part 9 there are lots of these measures, partly because we are translating changes to existing town and country planning Acts.
Amendments Nos. 451 and 452 confer a general power on the Secretary of State to make provision by regulations about the determination of planning applications in cases in which a local planning authority or a committee or sub-committee decides to determine a planning application, by virtue of proposed new section 75A(6), which would otherwise have been dealt with by an officer of the authority under the mandatory scheme of deregulation required under proposed new section 75A. Such planning applications might include those that, although relatively small-scale, had already generated a high degree of controversy in the early stages of the application process. We do not envisage that there will be many of those types of application.
Amendments Nos. 461, 462, 471 and 472 make corresponding changes in clause 151 in relation to the determination of applications for certificates of lawful use and in clause 153 in relation to listed building applications by officers.

Alun Michael: My hon. Friend the Minister’s application amendments are to a clause that deals primarily with the determination of planning applications by officers. The Government amendments also refer to the determination of such applications by members of the council.
My hon. Friend rightly said that sometimes those issues will be controversial. For that reason, I should be grateful if he would spell out the responsibilities of councillors for communication in respect of planning issues of this sort and others. Does he agree with me that an important part of the role of the local councillor is communication with local people? On the one hand, he must listen to local views and, on the other, he must explain to people what is involved in an application. That is important because there is often serious misunderstanding about what is involved in a particular application, particularly of the sort to which he has just referred, which has already been a matter of some controversy.
There was an application in my constituency last summer for a facility to help in the training of adults with learning difficulties so that they could live independently in the community. Some local residents thought that it was going to house dangerous offenders. Terminology was misinterpreted, as were details of the design. I am sure that you would appreciate, Mr. Illsley, as any councillor or Member of Parliament would, how febrile the atmosphere can become around what initially looks to be a totally innocuous application or one in which the controversy has already been dealt with.
I approve of the emphasis that is placed by the Department on pre-application consultation by the developer, but that is not a universal panacea. In circumstances such as those that I have referred to, no amount of emphasis on pre-application work would take away the need for clarification and communication. A local councillor should be engaged in that, even if he or she is a member of the planning committee or in some cases the chair of it, as in the example that I have referred to. Of course they need to be professional. We need to avoid the impression of bias or prejudice, but in my experience, most councillors understand that and are very professional and objective. Indeed, recent research for the Department suggests that there is no major problem in that area.
What is worrying is that local councillors, especially those who are members of the planning committee, are being inhibited in carrying out their democratic duties as elected representatives by advice that is excessively restrictive and sometimes almost paranoid in nature. It seems that some officers feel that the silent councillor is the only type that they want to have around when it comes to planning issues. As anybody who is involved in democratic processes in any political party knows, a silent councillor is a dead councillor in political terms, just as a silent Member of Parliament is a dead Member of Parliament.
Will my hon. Friend assure me that it is the Government’s intention that public opinion be a material factor in the planning process? Will he assure me that the Government believe that councillors are under a duty to engage with this process in a professional and responsible manner, rather than by pretending to be Trappist monks? In the light of that, will he look at the publications that sometimes appear to be over-restrictive and over-cautious and at the advice that has been given to some councillors by some council officials? I do not pretend that that happens universally, but it is a serious issue.
I have looked at what is in many ways a very good document, called “Constructive Talk”. It has been drawn up by a series of organisations with the encouragement of the Department and it quotes Government advice. It says:
“Government advice is that Councillors should involve themselves in discussions with developers, constituents and others about planning cases, provided they observe the advice set out in Positive Engagement”.
“Positive Engagement” is, again, not simply a partnership document, although it bears the signature of a Minister, Baroness Andrews, as well as that of Sir Sandy Bruce-Lockhart of the Local Government Association, among others. It gives some really useful advice, but also among the “dos” it states:
“Hold discussions before a planning application is made, not after it has been submitted to the authority”.
That is a counsel of perfection. It is unrealistic to think that that can happen in all circumstances. It may be right to try to do that as frequently as possible, but there are many circumstances in which issues emerge only after the application has been made.
People will rightly turn to their local councillor and expect them to listen to their views and represent them. That does not mean that the councillor will necessarily swing into the camp of being a campaigner for or against something. It is that professionalism that is important. That advice, which in my view appears to go a little too far, is as nothing compared with the draconian advice to shut up and do nothing that is being given to some councillors and that is making many councillors feel that they are under a legal obligation not to carry out their democratic duties. I am sure that is not the Government’s intention, and I hope that the Minister can say something positive in response that will make that clear.

Jacqui Lait: Does the right hon. Gentleman think that this stems from the Standards Board advice about conflict of interest of councillors and does he think that advice is correct?

Alun Michael: It goes a little bit too far. As with many aspects of proprieties—perhaps I should mention that I am a member of the Committee on Standards in Public Life—the principles of public life are principles of propriety, whereas the public expect good decisions, good service and action from their elected representatives. Of course, that activity on behalf of constituents should be done with propriety at all times. Sometimes we lose sight of quality while we are dealing with proprieties. I do not diminish in any sense the importance of doing things properly, correctly, without bias, objectively and all the rest. That is massively important, but so is doing things well and being seen to listen to the views of constituents. It is a question of getting the balance right.
Observing the proprieties and being careful not to give the impression of bias in what we do is as important for a councillor as it is for Member of Parliament, but so is the quality of the decision making, which means being fully informed, among other things, of the public views on an application. The visible representation of the interests of constituents is also important for the good reputation of democracy as well as the good reputation of the individual councillor. That should not be removed if that individual is a member of, or even the chair of, the planning committee. I have been the chair of a planning committee myself and I know that, in that role, one must be very careful about the words one uses. I do not think it should prevent anyone from engaging with the people they represent.
Sometimes the advice of officers can be too careful, so can that of officials in Government Departments. Having had ministerial responsibility for planning, I can say that from personal experience. That was in relation to Wales but the point is the same. Abrogating the responsibility to listen to all the arguments and to balance them in coming to the best possible judgment is the right way forward: pretending that one can close off all communications and that that is somehow safe is not. I hope that my hon. Friend the Minister will be able to endorse this as the balanced way of dealing with the responsibilities of councillors in relation to planning matters.

Bob Neill: I very much agree with the right hon. Gentleman. I hope that the Government will take on board the point that this is not the first time that we have raised this issue. There was quite a lengthy discussion during the Committee stage of the Local Government and Public Involvement in Health Bill. The same points were made and they were generally accepted. It certainly seems to most of us who have had experience of local government and who have seen how it operates now that an excessive restriction is placed upon members. Partly that is a result of the perverse workings of some of the case-law decisions in relation to the doctrine of predetermination. That has become something of a stranglehold rather than a guarantee of probity in many respects. It also stems from a gold-plating of cautiousness that is applied to the advice that comes pretty much at all levels.

Richard Benyon: Does my hon. Friend also agree that we are rather archaic in how we inform members of the public about planning applications? For example, we still require local authorities to inform on issues relating to listed buildings through the local paper. We are led to believe that a declining number of people read local papers, but there is no requirement in law to put such information on the council website, for example. My local authority would save £65,000 a year if it was allowed by law to modernise the way it imparts information to local people on these important matters. That equates to about £10 million for councils across the country.

Bob Neill: My hon. Friend makes a useful point. Most local authorities voluntarily publicise planning applications on their website; the London borough of Bromley certainly does so and, as time goes on, it must be the sensible way to proceed. However, that segment of the population— perhaps the more elderly people—who may not have access to the internet must be taken into consideration. There is a balance to be struck and there may be more practical ways of achieving our objective without increasing the considerable costs that sometimes arise.
The right hon. Gentleman made a significant point about the importance of planning decisions to many people and communities. In many localities, planning issues are one of the key matters; they are as important as anything else, especially in view of how local authority boundaries are drawn. There may not be any other major issue in a ward, but planning issues may arise. If the existence of an application in effect gags local councillors from expressing views—by keeping a sensible balance and speaking with care—on what is probably the most important issue for their residents, it will have the perverse effect of bringing local democracy into disrepute.
One example, which is not from my constituency, was in a local authority ward where the big issue was the potential development of a golf course. It was privately owned but it was the main open space, the green lungs for people who lived in the area.
When elections come round, planning is one of the key things that people want to know about. Even between elections they ask, “Where do our councillors stand on this issue?” It is pretty perverse if councillors are told, “If you tell your residents where you stand, you can’t say anything if you serve on the planning committee because you might be seen to have predetermined the issue.” With respect to the people who drew up those rules, the average man and woman in the street would say, “That is absolute nonsense. It stands democracy on its head.”
The issues were raised at some length by members from both sides of the Committee in previous discussions in planning and local government Bills. The Minister’s predecessor, the current Minister for the Environment, was sympathetic to a number of their concerns and there was hope that the Government would look at them, but there is nothing in this Bill that deals with those issues. However, I hope that the Government will not lose sight of them because there is a general groundswell on this important matter. We all want to strengthen local government and local democracy and to remove a huge chunk of the work on issues that affect people and to impose what, to the voter, are artificial constraints that damage, without very good reason, the institution that we seek to nurture.
I hope that the Minister listened carefully to what the right hon. Gentleman said from his very great experience and that he accepts that we are not making a partisan point. We want to find a constructive way forward that would enable local councillors to exercise their democratic right in a way that is consistent with their difficult role in planning matters.

Daniel Rogerson: I want to add my support to the comments made by the right hon. Member for Cardiff, South and Penarth. He is absolutely right to raise the issue, which is of huge concern to elected Members involved in the process but mystifying to those who want to contact their local councillor to discuss matters. When I was a councillor those rules were not in effect, but I know it is a source of frustration to colleagues. I was fortunate in being able to say what I wanted to. However, I do not know whether I should admit the fact that I always managed to avoid planning training, so I did not have to go on the development control committee at the time.
Since I was elected as a Member of Parliament, I have noticed the number of times that people now come to their MP to express opinions. We have to say, “It is possible for me to write a letter but, to be honest with you, the experts who are trained in planning are your local members”. Great investment has been made to ensure that elected members of local authorities have the skills to consider these matters appropriately, and it is utterly ludicrous that they cannot perform their role as local ward members in addition. It cannot be beyond the wit of those revisiting the issue to come up with a solution that meets the need for fair decision making, but also reflects that important part of the role of local authority members.
I certainly add my views to those of hon. Members who have already spoken. As the Government move forward to reflect on how the Bill is progressing, bring forth further regulation subject to the provisions in the Bill and revisit planning, I hope that they will address the matter in the future.

Parmjit Dhanda: This has been a useful debate. My right hon. Friend the Member for Cardiff, South and Penarth has taken an interest in such matters for a number of years. In fact, when he was a Minister, he had to help me with the odd planning application or two I recall. The frank answer to his question is: yes, public opinion is a material factor. It is important for local government and local councillors to be involved in local consultation. It is important to all politicians that we listen. The LGA is also very helpful in producing guidance, and I am happy to point hon. Members in that direction so that they can see some of the guidance that it has produced in that area.
Like the hon. Member for North Cornwall, when I was a councillor, I too steered clear of the planning committee. Little did I know that a few years later, I would be a Minister on the Planning Bill. That is the way it goes sometimes.
Briefly, on the subject of websites, a lot can be done to use them, as well as local newspapers, to get the message across. I am conscious also that the clause is about local member review bodies. I, and other Labour Members are keen on the idea of local members having greater involvement. I dare say that we will come to that wider debate when we come to the Opposition amendments tabled on the clause.

Amendment agreed to.

Amendment made: No. 452, in clause 150, page 73, line 22, at end insert—
‘(b) by a local planning authority, or a committee or sub-committee of such an authority, acting by virtue of section 75A(6).’.—[Mr. Dhanda.]

Parmjit Dhanda: I beg to move amendment No. 453, in clause 150, page 73, leave out from ‘particular’ in line 23 to end of line 30 and insert—
‘(a) disapply or modify any provision of, or made under, this Part in relation to such an application;
(b) impose requirements on the officer, authority, committee or sub-committee determining such an application.’.

Eric Illsley: With this it will be convenient to discuss Government amendments Nos. 454, 463, 465, 473 and 475.

Parmjit Dhanda: The amendments deal with minor corrections and changes to help improve the drafting of the Bill. Proposed new section 75B enables the Secretary of State to make regulations about the determination of a planning application under proposed new section 75A(1)(b); that is, those applications that are specified as reviewable by a local planning authority or local member review body after an initial determination by an officer of the authority.
Amendment No. 453 is a technical one. Any determination of a planning application by an officer acting under arrangements made under proposed new section 75A(1)(b) or a local planning authority, a committee or sub-committee acting by virtue of section 75A(6) will be a determination of the application under part 3 of the Town and Country Planning Act 1990. That part will apply to the determination in the absence of provisions to the contrary. I will keep my remaining comments very brief because we can then move on to the substantial debate that I know hon. Members of other parties want to have on the clause. It follows that proposed new section 75B(2) is not quite right in assuming that part 3 needs to be applied. We believe that the right approach is to take a power to modify or disapply part 3. That is the purpose of the amendment.
Amendments Nos. 463 and 473 will make corresponding changes in clauses 151 and 153. Amendments Nos. 454, 465 and 475 will make similar technical amendments to other parts of clauses 150 to 152.

Amendment agreed to.

Bob Neill: I beg to move amendment No. 422, in clause 150, page 73, line 31, leave out from beginning to end of line 15 on page 74.

Eric Illsley: With this it will be convenient to discuss the following amendments: No. 407, in clause 150, page 74, line 10, at end insert—
‘(h) about the fee to be payable to the local planning authority.’.
No. 428, in clause 150, page 74, line 15, at end insert—
‘(7) A local planning authority may arrange for the discharge of their functions under this section by a panel of elected members drawn from other local planning authorities.’.
No. 423, in clause 151, page 76, line 45, leave out from beginning to end of line 27 on page 77.

Bob Neill: This group of amendments relates to the operation of member review bodies. We are interested in fleshing out how this process will work. The amendment looks draconian, but it is intended to probe how the process will happen. We start from the proposition that we are broadly in favour of anything that tends to pass down powers and decision making to a more local level, so I do not have an issue with the principle of the clause. However, if we are going to make it work and if it is to be viable, a number of questions remain to be answered. At the risk of sounding like the devil’s advocate, I think that it is as well that we probe the arrangements a little now.
It is significant that the Local Government Association supports the idea of member review boards for minor applications. We will have to be careful about what the thresholds are. It used the slightly guarded phrase that the boards
“could provide a welcome opportunity for councillors to have the final say.”
As with many people in local government, it wants a bit more detail about how that would work in practice. 
On the other side of the coin, there are people with legitimate professional concerns about how we can guarantee the clear independence of councillors from their officers and ensure that such a system operates effectively without there being any breach of natural justice for applicants. We must ensure that we deal with that not only in domestic law, but under article 6 of the European convention on human rights. We are concerned about how that could be done effectively. Some detail has been set out, but much more will be required.
When we discuss later amendments, we will postulate an idea for how to get over the practical problems of getting a viable pool of members to hear the applications. We must consider how many applications any local authority will hear. For some local authorities, it could be quite a lot. Should the board contain people who would ordinarily be on the planning committee or is there to be a distinction? It looks as if we will have two parallel systems. Will there be applications that are dealt with by officers that are referred to the planning committee in the ordinary way? Will there be a separate review board for decisions that are to be made by officers? Will it be like the planning committee with the same people, but wearing different hats an hour later? Will there be a similar training regime? Should we use people who are not members of the planning committee because they could be thought to be too close to the officers with whom they work on a regular basis? That is the other side of the coin.

Daniel Rogerson: I am very pleased that the hon. Gentleman has tabled the amendment so that we can have this discussion. I see that he has proposed that members from a neighbouring authority should be involved. A number of authorities have raised concerns about the relationship between officers and the members of the authority. The proposal of bringing in members might, therefore, be helpful. Has he considered the possibility of seeking officer advice from the neighbouring authority as opposed to members, so that the democratic accountability remains with members who were elected to that body, but the advice comes from outside?

Bob Neill: I am grateful to the hon. Gentleman for that thought. I am open-minded on that issue. We would have to see what the implications would be in terms of the costs of an officer’s time being hired out to another authority. We tabled the amendments in a genuinely open-minded way. Perhaps something like that could be looked at. Many local authorities face the problem of a shortage of good, experienced planning officers. They are quite a scarce resource. In a number of authorities, planning departments are already thinking about ways in which they could operate to use their expertise. That might be something that we could look at.

Richard Benyon: We had a debate last week about the difficulty of bringing together more Select Committees in the House to look at the responsibilities that have been given to them by Government. The same problem exists in local authorities. Those of us who have been councillors know how difficult it is, even in a pool of 50 or 60 councillors in a unitary authority such as mine, to draw together people who have the necessary training at a certain time and day to look at a particular problem in a professional way. A lot of them have jobs and other responsibilities at the same time. It would be good to tease out from the Government what would be the frequency of these member review board meetings, what they would be doing and what they would require—not only in terms of members, but in the quantity of work they would be undertaking.

Bob Neill: My hon. Friend makes a valid point. We need to do more work on that before the Bill completes its progress. That is a further issue that needs to be considered. It links in to our earlier discussion about the issue of predetermination and the scope that there is for local councillors to express views. If, for example, one were to adopt the view that ward councillors, or those who have expressed an interest in an application, are to be excluded, the pool of available members who could serve on the review body will pretty rapidly be reduced. If the planning committee was also excluded, who else would be left?
There are also the practical points that my hon. Friend the Member for Newbury made about whether members will be available at convenient times. One can see a lot of difficulties that could arise in practice. That is why we suggest in amendment No. 428 that it should be possible to bring in members from a neighbouring authority. We are flexible as to how the class of that authority should be defined. It could be another district in the same area or an adjacent borough in London. Again, there are swings and roundabouts on that issue. We are putting it up for discussion to see the ways in which it could be done. Some might say that, in a two-tier authority, members could be taken from a different tier. There are all manner of permutations.
We need to think the matter through if we are to end up with a potentially useful and enhancing role for local councillors. That role will set a significant precedent so we must get it right. With respect to the Minister, that is why I was a little disappointed in the reply that he gave to the points made by the right hon. Member for Cardiff, South and Penarth. The Minister went into some detail about the issue of predetermination and related matters, but it would have been better to have heard a little more about where the Government see themselves going on that issue. I would be troubled if his brevity was intended for anything other than to make good progress in the Committee. I hope that it was not hinting at any rowing back from the willingness that the current Minister for the Environment showed when he was dealing with planning matters.

Alun Michael: I regard the Minister’s brevity as clarity of the absolute determination to produce the assurance we seek. I know that my hon. Friend is not someone who wastes words and I am sure that he will reinforce that point in his response.

Bob Neill: The right hon. Gentleman puts things persuasively and I hope that he is right because, as I have said, this is not an area where we want to raise any partisan issues. I think people on all sides in local government and in the House want us to try to get things right, but there is a certain inertia factor in terms of unwillingness to change deep-seated practices and advice, which needs to be overcome.

Chris Mole: Perhaps I might briefly add some useful observations in the context of what the hon. Member for Bromley and Chislehurst has just said. Predetermination is less of an issue than the public’s perception of independence. There are precedents relating to local authority councillors undertaking appeal-type work in fields such as school admissions, although I think that has now been moved completely away from councillors. However, in other areas such as school transport, where local authority councillors usually have their appeal work administered by the local authority’s legal wing, some separation, a Chinese wall perhaps, is provided between the planning service and the councillors making those decisions.
When a member of the public gets the letter telling them what the process will be, however independent that process is, I fear that when they see the council’s logo on the top of the paper they will not distinguish between what one bit and another bit will do, and we will be wrestling with that reaction, perhaps until the end of time.

Bob Neill: The hon. Gentleman is absolutely right and his point is valuable and useful. The idea of different departments and Chinese walls is well worth looking at in practicality. I suspect that he is right about the scepticism that will remain, but we will just have to contend with it. When I was first elected to Havering council, I remember that it was suggested to me by someone who probably did not vote for me that I only did it because all councillors did not pay rates—as they were then called. There have always been some extraordinary misconceptions about local government, which one just has to struggle with as cheerfully as one can—[ Interruption. ] I did not realise that the Under-Secretary of State for Transport had not realised that was not the case.
I understand the point, which is helpful, and the Minister might be able to assist us a little more in fleshing out how we can make the process work if we are to go down that route.

Daniel Rogerson: To comment on the discussion that has just been led by the hon. Member for Bromley and Chislehurst, I think that the proposal is interesting and that it can offer something significant with regard to democratic accountability. Although I know that some people have concerns about the prospects and think that everyone feels that the Planning Inspectorate is fair and does an excellent job, and that it is independent and seen to be independent, that might be only from the applicants’ point of view and not from the point of view of residents in a local area. One often hears people’s dissatisfaction that a decision has been taken by someone who is not elected locally, so people will welcome greater provision to return to that principle. Clearly, there will be issues around how the proposal will work, but it is useful that we are having that discussion under clause 150.
Amendment No. 407 relates to the issue of costs and would ensure that the burden for an appeal did not fall on the local authority. The Minister will say that if the Government pass a measure to increase the powers or responsibilities of a local authority they will ensure that money goes with it so that the local authority does not have to find it from elsewhere. However, when the Minister’s party was in opposition they probably said that the previous Government passed things down without giving the local authority the resources to carry them out. That is a tendency that people in local government would identify, so if we are to give them extra responsibilities it is important to ensure that provision is made for the local authority to recover the costs involved, as there will be such costs. The prospect of local member review panels is a good one but much examination of the details will be needed, which has yet to come.

Richard Benyon: The hon. Member for Ipswich made a helpful point and he was absolutely right: these bodies have form in local government. The big question is how many and how often the member review boards will be required. As a local councillor, I sat on housing benefit review boards and we used to play Chinese walls with the revenue department when it gave evidence on which we had to make a judgment.
The hon. Member for Ipswich referred to school admissions, when people take evidence in a quasi-judicial way and make a decision. I want to press the Minister on the frequency of the boards, which will have to consider growing developments and increasingly complicated planning applications, especially in a constituency such as mine in the south-east of England. The whole system will grind to a halt because of the demands on councillors’ and officials’ time in processing them. I am at heart a localist; I want decisions to be taken locally and in that respect I welcome some aspects of the proposal, but the practicalities of what the Government are proposing cause us and a large number of councillors great concern.

Parmjit Dhanda: Before considering the purpose, effect and desirability of the amendment, it might be helpful for me to say a few words about the clause and where it is heading.
Clause 150 introduces in a new section 75A of the Town and Country Planning Act 1990 a requirement for local planning authorities to make arrangements for certain planning cases to be determined by officers of the authority. Examples of the types of development we have in mind are small-scale things such as householder developments, new shop fronts, small change-of-use proposals, advertisements and works on protected trees. Proposed new section 75A(4) provides for the Secretary of State, by regulation, to specify the types of planning application which, having been determined by an officer in the first instance, would be eligible for review only by a local member review body.
For those delegated applications, a proposed new section 75C establishes the right of review of the officer’s decision by the local planning authority through a local member review body. Proposed new section 78ZA removes the right of appeal to the Secretary of State under section 78 of the Town and Country Planning Act 1990.
Amendment No. 422 tabled by the hon. Members for Bromley and Chislehurst and for Beckenham would remove proposed new section 75C, and thus the provision for a review of a local authority officer’s decision on a planning application by a local member review body. Amendment No. 423 would remove proposed new section 193C of clause 151, and thus provision for review of an officer’s decision on an application for a certificate of lawful use of development by a local member review body. Either way we look at it, the amendment would, in effect, wreck what we are trying to do. We believe that the intention behind the amendments is to retain the right of appeal to the Secretary of State for such planning decisions. However, to make them fully effective, further consequential amendments would be required to clauses 150 and 151.
We regard the establishment of local member review bodies to review decisions on minor applications taken in the first instance by officers of the authority as a real merit, as does Sir Simon Milton of the Local Government Association, as the hon. Member for Bromley and Chislehurst mentioned. The measure will determine local matters at the most local level. It is probably the same in Newbury as it is in Gloucester as it is in London; we all know many councillors who lobby us and say, “We could be doing more at a local level.” I think that this is an area where they could be doing more.

Bob Neill: I hope the Minister gathered that we are not wedded to any particular form of wording; these are probing amendments. I take his point regarding the support of the LGA.
During discussions on the matters the Minister has been referring to, have his advisers in either the Department or the LGA been able to give an idea of the quantity of applications that might be dealt with? Sir Simon Milton was mentioned; he is the leader of a London borough. It would be interesting to know if there is any idea of how many such applications a London borough or a district council might reasonably expect to deal with, to establish the scale, as a number of Members are concerned about that.

Parmjit Dhanda: The hon. Gentleman has taken the words out of my mouth. I was just coming to that point.
As I said, the measure is about determining local issues at a local level, in line with the Government’s commitment to devolving responsibility wherever we can. At present, minor planning appeals are dealt with by the Planning Inspectorate on behalf of the Secretary of State. The existing appeal system is not equipped to handle the increasing volume of appeals—currently 22,000 per year, of which about 8,000 are minor appeals. We are talking about 22 cases a year in each locality, although that is obviously an approximation. If those cases could be dealt with by local member review bodies, users would benefit from a much quicker and simpler process, and local authority planning committees and the inspectorate would have more time to focus on the major cases, as we heard from the inspectorate when its representatives gave evidence to us in Committee what seems like many weeks ago.
Concerns have been expressed that it would not be possible to ensure an independent review process if the same authority was responsible for decision and for review; but it is not unprecedented for a local council to review its own decisions, as my hon. Friend the Member for Ipswich and others have said. Examples include the review of decisions on applications in respect of homelessness and school exclusions. Officers involved in making the original decision would not be involved in the review process.
The hon. Member for Newbury mentioned members of a planning committee. It would be possible for members of a planning committee to be members of the local member review body, as long as they had not been involved in any way in the original decision. The local member review body would draw its advice from elsewhere—for example, from planning officers of a partner authority, as has been suggested by Opposition Members, from external consultants, or from the body’s own legal services department.
Any member of a review body with a personal interest in a case, would be required to declare their interest and, if necessary, to withdraw from the decision process, as we would expect. That is not dissimilar to the existing planning process. Local review bodies formed through partnership with other authorities would also help to ensure impartiality, as a proportion of board members would have no local interest—something Sir Simon Milton told us in the evidence session a few weeks ago. The LGA is very attracted to that idea.
In addition, in clause 152, we have provided for appeal to the courts for anyone aggrieved by the decision of a local member review body. We are working with local government and planning professionals to develop the details of the scheme which will be subject to consultation. We still have all of that ahead of us, assuming that the clauses are successful and make it into the Bill. We have accepted advice from local government that local member review bodies are likely to work best when set up jointly by local authorities, acting in partnership. The hon. Member for Bromley and Chislehurst will be familiar with that from his days on the London Assembly. Section 101 of the Local Government Act 1972 already provides for that, too.
Turning to amendment No. 407, proposed new section 75C enables the Secretary of State to make provision by way of regulations for reviews of planning decisions carried out by local member review bodies. Proposed new section 75C(4) sets out some specific matters for which the regulations may include provision. Amendment No. 407 would enable the regulations on reviews carried out by local member review bodies, which the Secretary of State can make under proposed new section 75C, to include provision for the fee payable to a local planning authority for a review of an officer’s decision by the local member review body.
The Committee may be aware that clause 162 provides a power to enable a fee to be introduced for appeals. We will come to that in the fullness of time. That fee will be payable by the applicant to the Planning Inspectorate. We therefore propose that a local member review body would be able to charge a fee for reviews as well to be consistent. However, section 303 of the Town and Country Planning Act 1990 already provides the necessary power for that, so the amendment is not necessary.

Bob Neill: Will the Minister help me with an issue that has been raised by people in local government? Will there be a tariff for the fees or will the local authority have discretion as to what fees it sets within Wednesbury reasonableness principles? Will local authorities be able to recoup the whole cost of their appeals process or just a portion?

Parmjit Dhanda: That is still a matter for regulation and discussion. It is something on which we need to consult. I cannot give the hon. Gentleman a definitive answer, I am afraid.
Amendment No. 428 would enable reviews of planning decisions carried out under proposed new section 75C by a local member review body to be conducted by a panel of elected members drawn from other planning authorities, wider than just the local area. Local authorities already have the power under the Local Government Act 1972 to set up committees for the discharge of their functions, including joint authority committees. We have signalled that we would be happy for local authorities to establish those bodies on a joint basis should they wish to do so. The amendment is not, although I accept that it was tabled as a probing amendment. In conclusion, we are working with local government and planning professionals to develop the details of the local member review body scheme, which will be the subject of consultation and in which we see great merit. I therefore hope that hon. Members will not press their amendments further.

Bob Neill: I am grateful to the Minister for his response. It has been a worthwhile discussion on what is seen as an innovation. I note what he says and I am not at all unsympathetic, as I understand where he is coming from. However, if ever there was a classic case of the devil being in the detail, this is probably it, so it is important that we get as much indication of the Government’s thinking and as much clarity as possible. I appreciate that much of the detail will appear in regulations, but I hope that the Minister can update us on progress on some of those issues on Report. On that basis, I will not press the amendment.

Daniel Rogerson: I realise that amendment No. 407 is not to be discussed formally now, because it is not the lead amendment, but I shall respond to what the Minister said with regard to fees, because he said that the matter was up for discussion. I hope that he will take this as a contribution to that discussion and an acceptance of the principle that the local authority is already seeking to provide all sorts of good, efficient front-line services that have a big effect on the local community. When someone triggers an appeal, the principle that they should make a significant contribution, if not cover the cost, ought to be taken on board. I hope that we will come up with a solution as those discussions continue that allows the process to contribute to local democracy and democratic accountability without imposing an extra financial burden on the local authority.

Bob Neill: I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 454, in clause 150, page 74, leave out from ‘particular’ in line 44 to end of line 46 and insert—
‘(a) disapply or modify any provision of, or made under, this Part in relation to such an application;
(b) impose requirements on the local planning authority determining such an application.’.—[Mr. Dhanda.]

Parmjit Dhanda: I beg to move amendment No. 455, in clause 150, page 75, line 12, leave out from ‘if’ to end of line 16 and insert ‘—
(a) the local planning authority—
(i) have been required under section 75C to review the case, and
(ii) have failed to complete their review by the end of the period prescribed by regulations made by virtue of section 75C(4)(f), or
(b) the local planning authority have been required under section 75D to determine the application.’.

Eric Illsley: With this it will be convenient to discuss Government amendments Nos. 456, 466 and 476.

Parmjit Dhanda: As currently drafted, section 78ZA does not allow an appeal to the Secretary of State where the local authority or local member review body has determined a planning application following non-determination by an officer. There would be no form of appeal: the matter would be dealt with in the first instance by the local member review body and that would be it, so that needs to be amended. We believe that when a local member review body has taken the first decision on an application, rather than reviewing an officer’s decision, the right of appeal to the Secretary of State should be retained because there will no alternative opportunity for scrutiny of the original decision.
An example of such a circumstance is the local member review body stepping in and making the decision because officers were late in determining it. The purpose of Government amendment No. 455 is therefore to enable an applicant to appeal to the Secretary of State when a local member review body has taken the first decision on a planning application. Government amendment No. 456 is consequential to amendment No. 455. Government amendment No. 466 has the same purpose as Government amendment No. 455 in relation to lawful developments and appeals, as does Government amendment No. 476 in relation to listed building application appeals.

Amendment agreed to.

Amendment made: No. 456, in clause 150, page 75, line 18, leave out ‘such an appeal’ and insert
‘an appeal under section 78(1) brought by virtue of subsection (2)(a)’.—[Mr. Dhanda.]

Clause150, as amended, ordered to stand part of the Bill.

Clause 151

Determination of applications for certificates of lawful use or development by officers

Amendments made: No. 457, in clause 151, page 76, line 2, leave out ‘under subsection (1)(a)’ and insert ‘by them under this section’.
No. 458, in clause 151, page 76, line 5, leave out ‘subsection (1)(a)’ and insert ‘this section’.
No. 459, in clause 151, page 76, line 11, leave out ‘subsection (1)(a)’ and insert ‘this section’.
No. 460, in clause 151, page 76, line 30, leave out ‘subsection (1)(a) of’.
No. 461, in clause 151, page 76, line 34, at end insert—
‘(a) ’.
No. 462, in clause 151, page 76, line 36, at end insert—
‘(b) by a local planning authority, or a committee or sub-committee of such an authority, acting by virtue of section 193A(6).’.
No. 463, in clause 151, page 76, leave out from ‘particular’ in line 37 to end of line 44 and insert—
‘(a) disapply or modify any provision of, or made under, sections 191 to 193 in relation to such an application;
(b) impose requirements on the officer, authority, committee or sub-committee determining such an application.’.
No. 464, in clause 151, page 77, leave out lines 19 to 23 and insert—
‘(5) Subsections (5A) and (5B) apply where a local planning authority has reviewed a case under this section.
(5A) If and so far as the local planning authority is satisfied that the officer’s refusal is well-founded, the authority must uphold the decision under review.
(5B) If and so far as the local planning authority is satisfied that the officer’s refusal is not well-founded, the authority must—
(a) grant the applicant a certificate under section 191 or, as the case may be, 192, or
(b) in the case of a refusal in part, modify the certificate granted by the officer.’.
No. 465, in clause 151, page 78, leave out from ‘particular’ in line 4 to end of line 6 and insert—
‘(a) disapply or modify any provision of, or made under, sections 191 to 193 in relation to such an application;
(b) impose requirements on the local planning authority determining such an application.’.
No. 466, in clause 151, page 78, line 23, leave out from ‘if’ to end of line 27 and insert ‘—
(a) the local planning authority—
(i) have been required under section 193C to review the case, and
(ii) have failed to complete their review by the end of the period prescribed by regulations made by virtue of section 193C(4)(e), or
(b) the local planning authority have been required under section 193D to determine the application.’.—[Mr. Dhanda.]

Clause 151, as amended, ordered to stand part of the Bill.

Clause 152

Validity of decisions made on reviews

Question proposed, That the clause stand part of the Bill.

Bob Neill: I have a brief question for the Minister. Is my reading of subsection (3) correct, and am I right in thinking that the effect of proposed new section 286A is that there will be just two grounds for seeking a review by the High Court: either ultra vires or on the grounds of deficiency of process? That excludes any question of unreasonableness in terms of the Wednesbury decision. That question may well be excluded for perfectly good reasons, but for the purposes of clarity, am I right in thinking that that is the case?

Parmjit Dhanda: Yes, that is the case, although there are other grounds for appeal, where one can go to the Secretary of State, as I described a few moments ago.

Question put and agreed to.

Clause 152 ordered to stand part of the Bill.

Clause 153

Determination of listed building applications by officers

Amendments made: No. 467, in clause 153, page 79, line 38, leave out ‘under subsection (1)(a)’ and insert ‘by them under this section’.
No. 468, in clause 153, page 79, line 41, leave out ‘subsection (1)(a)’ and insert ‘this section’.
No. 469, in clause 153, page 80, line 4, leave out ‘subsection (1)(a)’ and insert ‘this section’.
No. 470, in clause 153, page 80, line 23, leave out ‘subsection (1)(a) of’.
No. 471, in clause 153, page 80, line 39, after ‘application’ insert—
‘(a) ’.
No. 472, in clause 153, page 80, line 41, at end insert—
‘(b) by a local planning authority, or a committee or sub-committee of such an authority, acting by virtue of section 19A(6).’.
No. 473, in clause 153, page 80, leave out from ‘particular’ in line 42 to end of line 2 on page 81 and insert—
‘(a) disapply or modify any provision of, or made under, this Chapter in relation to such an application;
(b) impose requirements on the officer, authority, committee or sub-committee determining such an application.’.—[Mr. Dhanda.]

Parmjit Dhanda: I beg to move amendment No. 474, in clause 153, page 81, line 23, at end insert—
‘(da) requiring a local planning authority reviewing a case to have special regard to the matters specified in section 16(2);’.
The amendment will enable the regulations made by the Secretary of State on reviews of listed building applications carried out by a local member review body to require the body reviewing the case to have special regard to the desirability of preserving the building, its setting or any features of special architectural or historical interest that it possesses. The amendment would therefore enable a review of a listed building application under proposed new section 19C of the Planning (Listed Buildings and Conservation Areas) Act 1990 to be consistent with consideration of listed building applications by local planning authorities or the Secretary of State under existing legislation.

David Curry: Will regard also be given to any special habitat features of the building? I have a listed barn which is supposed to be one of the best 17th-century barns in Essex. It would have been dead easy to get the council to give me permission to put six houses there, but I restored it and I had to go to great lengths to preserve two rare species of bats that lived in the barn. I am proud to have done so; the bats and I are great friends, and the muck they drop on the floor makes extremely good horticultural dressing for my vegetable garden. It is an entirely recycled system, which is helping to save the planet.
We are all concerned about the future of owls and their habitat, and I want to ensure that one cannot knock down something that is the habitat of a species we are anxious to preserve.

Parmjit Dhanda: I welcome back the right hon. Member for Skipton and Ripon and wonder whether he should declare an interest before making a contribution. I will have to check what happens if the habitat is part of the listed status, and I will clarify the position in writing to him. I shall be interested to know the answer, too.

David Curry: I doubt whether it will be part of listed status, because the building could have been listed some time ago and the habitat could have developed subsequently. This is not a joke; it is a serious matter and I should be grateful if the Minister made some inquiries about it.

Amendment agreed to.

Amendments made: No. 475, in clause 153, page 82, leave out from ‘particular’ in line 17 to end of line 19 and insert—
‘(a) disapply or modify any provision of, or made under, this Chapter in relation to such an application;
(b) impose requirements on the local planning authority determining such an application.’.
No. 476, in clause 153, page 82, line 32, leave out from ‘if’ to end of line 35 and insert ‘—
(a) the local planning authority—
(i) have been required under section 19C to review the case, and
(ii) have failed to complete their review by the end of the period prescribed by regulations made by virtue of section 19C(4)(f), or
(b) the local planning authority have been required under section 19D to determine the application.’.—[Mr. Dhanda.]

Clause 153, as amended, ordered to stand part of the Bill.

Clause 154 ordered to stand part of the Bill.

Clause 155

Removal of right to compensation where notice given of withdrawal of planning permission

Jacqui Lait: I beg to move amendment No. 415, in clause 155, page 83, line 20, after second ‘development’, insert ‘within the curtilage of a dwelling house’.

Eric Illsley: With this it will be convenient to discuss amendment
No. 535, in clause 155, page 83, line 28, at end add—
‘(3C) This section shall not apply to permitted development rights under Part 5 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995.”.’.

Jacqui Lait: The amendments are different sides of the same coin. There is a desire to tidy up some of the applications under an article 4 direction. I understand that the Government are particularly concerned to affect the house in single ownership, which is why we tabled amendment No 415. However, we are also concerned about the case in East Sussex that was drawn to our attention during the evidence session in a written submission from Tim Driver. I had nothing to do with it, and it does not affect where I live or the county council; it is coincidental that the case was in East Sussex. It was an interesting one, involving a family argument about a caravan site, and I am sure that the Minister is well aware of it.
Our concern is that at present, article 4 directions apply to more than just the small house owner. They apply in the agricultural sector, forestry, industrial development, minerals, drainage works, aviation, schools, colleges and hospitals. If the right to compensation is withdrawn should a local planning authority decide to change its mind, it affects not just the house builder but a much wider audience.
The National Farmers Union has been very active in setting out for us the case as it affects farmers. On the one hand, the Government are trying to be more permissive and to make it easier for people to develop under permitted rights. On the other, the blanket application of this clause will have a negative impact on the areas that I have already set out, because it will make it much more difficult for farmers in other areas to develop their business without knowing that they are within their rights for permitted development. A local planning authority could change its mind and, given the pressure that farmers are under at the moment to diversify, they will find that there is no right to compensation.
We want to get a feel from the Government as to whether they have any sympathy at all for the plight of people who could be affected by this change in permitted development. I readily admit that if there is some sympathy and the Government are prepared to look at the matter further, I will not press the amendment. The wording may need to be changed, but we should like to hear the Minister’s view on the principle here.

Elfyn Llwyd: I note that the Bill includes the usual section 19 reference to human rights compatibility. Is it right for such a clause to be stand part of the Bill? If my reading is correct, planning permission could have been validly given at some point by the necessary authority. It could then be withdrawn, albeit with 12 months’ notice, and no compensation would be paid for the diminution in the business and/or the loss of that facility. I am not sure whether that is contrary to the Human Rights Act as I understand it.
In any event, as a matter of good common sense, if someone loses an asset through no fault of their own, but as a direct result of an administrative action by an authority, surely basic understanding of administrative law leads one to think that there has to be a right to compensation. Otherwise, people could be ruined overnight through no fault of their own. This is rather serious. Unless I have misread the clause, it appears to be an extremely serious proposal.

Parmjit Dhanda: I am grateful to the hon. Gentleman for his question. I believe that he has misread the clause, and I will try to explain why. I may wish to return to the hon. Lady for a little more information about the nature of article 4 and the impact that she feels it is having on the farming community, what type of article 4 she means, and whether such a thing could in any case happen as of now. The clause does not do away with the existing article 4, but it gives other powers to local authorities, which I will try to explain.
The clause amends the right to compensation so as to enable changes to be made to restrict permitted development without incurring liability for compensation. I will give some examples of that in a moment. Existing legislation provides that local planning authorities are liable to pay compensation for 12 months after permitted development rights are withdrawn. Hon. Members can probably understand where that has come from.
I will give an example. If Westminster city council did not want the residents of every house on a given street to convert their front lawns into driveways, it could implement article 4, saying that it is against the rules for anyone to do so. Residents locally could say that they were planning to do that, and they would have 12 months to apply for compensation.
The changes that we are making to the clause will make it possible for local authorities to say, “Actually, in 12 months’ time, we will implement this change, so if you really want to concrete over your front drive, you have 12 months to do it. Therefore, you will not get compensation.” In many cases, so local government has told us, people who had no intention of concreting over their front drives applied for the compensation, saying that they had planned to do so. That is the bare bones of the intention behind the provision.

Elfyn Llwyd: That is obviously a case where everyone would be in sympathy with the Government in making the change. I am asking whether the clause extends more broadly to larger permitted developments. Farmers are often allowed to put up large byres or to convert a grain store for further business use, whatever it might be. A substantial body of permitted development is allowed under the Town and Country Planning Act 1990 for people engaged in full-time agriculture. Would the provision affect them in some way?
I do not think that anyone would argue with the example that the Minister gave, but the concern of the NFU and others would be whether existing permitted developments were to be denied without compensation. Let us say that I, as a farmer, put up a grain store, which I am entitled to do under permitted development. I start my business and 12 months’ hence, I find that I am not allowed to pull it down. That is my reading of the provision. I hope that I am wrong, but clearly the question of compensation ought to be considered.

Parmjit Dhanda: I can reassure the hon. Gentleman that the Bill has been human rights-proofed and checked. I am happy to come back to him in a few moments, when I will spell out a little more what the clause does and does not do, but for now I want to make some progress.
Existing legislation provides that local planning authorities are liable to pay compensation for 12 months after permitted development rights are withdrawn. That might occur when a planning application to carry out what had been permitted development is either turned down or granted subject to conditions. A local planning authority might require planning applications for loft extensions, for example, in order to protect the appearance of an area. The legislation applies whether the change is made by a planning authority withdrawing rights locally, or by Government changes to national permitted development rights.
The clause is part of the Government’s general policy to give greater flexibility to local planning authorities to tailor permitted development rights more closely to local circumstances, within a generally more permissive regime. That will allow local authorities to protect specific areas from unsuitable development. The clause will provide an alternative procedure that allows restrictive charges to be made without compensation being payable. I hope that I have answered the hon. Gentleman’s point.
If there are any developments that will no longer be permitted for compensation terms, there will still be 12 months for those developments to be fulfilled. To ensure that people whose permitted development rights have been removed do not incur abortive expenditure, the clause requires that at least 12 month’s notice is given of the change. The 12-month notice period should ensure that such costs are avoided, so that people will be no worse off than under the existing scheme.
Amendment No. 415 would limit the alternative compensation arrangement to changes relating to householder development only. However, the purpose of the clause is to deliver greater flexibility to amend permitted development rights generally. That will allow local authorities greater freedom to do what is necessary to protect particular areas by means of what are known as article 4 directions.
The clause is necessary to protect particular areas, given the Government’s intention to provide a generally more permissive national framework. I have also explained that, given the 12 month’s notice required before a change comes into effect, developers will not lose out. Under the new mechanism, they will have 12 months to carry out the work.
The existing system will remain in place in parallel. However, we want to ensure that restrictions are made only when necessary and that people who might be affected have a chance to make their views known. I hope that that is of relevance to the hon. Gentleman. We intend to strengthen the procedures of article 4 directions. In the future, local authorities will be required to consult those people who are likely to be affected by a direction. Representations will have to be taken into account before an article 4 direction can be made. Similarly, any proposed Government restrictions will be subject to public consultation.
Amendment No. 535 would remove any right to compensation for restrictions made to permitted development rights that relate to caravan sites. I have already explained that, in general, we want to make it easier for permitted development rights to be withdrawn where necessary. However, I believe that those who enjoy such rights deserve some protection where that might happen. The Government approach that would ensure a 12-month period of notice before rights are removed or a 12-month right to compensation being payable is fair across the board. I see no reason to single out any form of permitted development—whether caravans or something else—to be subject to different treatment.
With regard to proposals that affect other types of development—for example, farms—I understand what the hon. Gentleman is saying, but I can already name rights that have been withdrawn under the old system where compensation had to be paid for 12 months. Under the new alternative, there will be 12 months to carry out that work, unlike under the existing system. The hon. Gentleman still looks somewhat perplexed; I am quite happy to hear anything more that he has to say.

Elfyn Llwyd: The Minister is doing his best to assist us, but I am still not fully au fait with what he is saying. Let us say that there is permitted use of some agricultural land for a certain period each year for touring caravans and camping. That would add considerably to the value of the holding. It is also in accordance with what we are all trying to encourage—diversification and so on. If the Minister is suggesting that we could say, “Well, in 12 months’ time, you won’t be allowed to site anything on that land, but we’ll only pay 12 months’ compensation”, that does not seem to be much of a bargain from the farmer’s point of view if, for example, that holding had depended on that summer income for its viability for the past 10 or more years. I understand most of what the Minister says, but I do not think that 12 months’ compensation is an adequate basis for that type of example. Such a system could make the difference between a small holding being viable and having to sell up, move to a town and give up farming altogether.

Parmjit Dhanda: The hon. Gentleman and I may be at something of a crossed line here. I am talking not about 12 months of compensation, but about a specific development and having 12 months within which to build that development—a slightly different set of circumstances from what the hon. Gentleman is talking about.
Local authorities can already use article 4 to tell a farmer, for example, “This is not allowed on your land.” However, we are talking about development, so that if the farmer wishes to have a development on his land, it is not a case of taking anything away from him, but of saying to him and to people across a wider area, “This is what we intend to do; this is what we intend to prohibit; you have 12 months in which to do it.” In the past, there would have been a case of compensation if a farmer had said, “Well actually, it was my plan to do that here on this site, but you have invoked article 4, so I therefore cannot do it anymore.”

Richard Benyon: I declare an interest as a farmer. If the Minister remembers back a few years, the buzz word in Government was “rural proofing” and every aspect of Government policy had to be rural-proofed. [Interruption.] Indeed. The right hon. Member for Cardiff, South and Penarth was responsible for that. Has the Minister run this past his colleagues in DEFRA? Certain local authorities are itching to grab hold of the whole general development order process, to stop farmers from expanding their businesses in just the way that the hon. Member for Meirionnydd Nant Conwy was describing. I fear that, in some areas, one of which is not far from my constituency, the local authority would stifle the development of businesses in precisely the opposite direction to that in which the Minister’s colleagues in DEFRA are taking it.

Parmjit Dhanda: I am going to bring my comments to a conclusion, because I think that we have had a useful debate, but I hope that I have been able to allay hon. Members’ fears, as article 4 directions are already in existence. As I have said, the local authorities can say that a certain kind of development will be prohibited and then local people—whether farmers or other residents—can say, “I want compensation because I had planned to do that.” This measure gives another option to local authorities, whereby they can say, “We wish to prohibit this kind of development, but if you wish to go ahead with it, you have 12 months to do so.” That is probably a fair position to be in.

Jacqui Lait: I must apologise to the Committee, because in my eagerness to be brief, I was not clear, so I am grateful to the hon. Member for Meirionnydd Nant Conwy and my hon. Friend the Member for Newbury for giving graphic examples that clarify the situation. I am still unconvinced by the Minister’s argument. In essence, he is making it easier for local authorities to take away a permitted right, so the proposal is permissive for local authorities, but it is absolutely not permissive for those people who are predicating a business plan, which may last for more than a year, on permitted development rights that they have and have taken for granted that they would have. I accept what he says about local authorities being able to take permitted rights away, but they have to pay compensation. The proposal limits that compensation. I will read what the Minister said carefully, but my gut feeling is that I will not be happy and that we may well have to return to this.

Parmjit Dhanda: It is worth adding that it is a requirement for local authorities to consult as well, when they are planning any of these article 4 changes. That is important in this context. Article 4 already exists, but under the new interpretation and given 12-month period, any change would require local discussion.

Jacqui Lait: I am grateful to the Minister for elucidating that point, but it does not answer what my hon. Friend the Member for Newbury said about a local authority that is itching to gets its hands on those rights. We can consult till the cows come home, but if that local authority is determined to extinguish those rights, the Government are giving them that ability, however hard they insist on consultation. I do not wish to prolong the debate any further, unless the Minister has something new and revelatory to say. On the basis that we may wish to return to the issue later, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 155 ordered to stand part of the Bill.

Clause 156

Power to make non-material changes to planning permission

Parmjit Dhanda: I beg to move amendment No. 477, in clause 156, page 83, line 29, at end insert—
‘(1) TCPA 1990 is amended as follows.
(2) ’.

Eric Illsley: With this it will be convenient to discuss the following amendments:
Government amendment No. 478
No. 30, in clause 156, page 83, line 33, after ‘may’, insert
‘on the request of a person interested in any of the land to which the permission relates’.
No. 31, in clause 156, page 83, line 34, leave out ‘relating to land in their area’ and insert
‘for which they are the local planning authority’.
No. 32, in clause 156, page 83, line 34, leave out ‘they are satisfied that’.
No. 33, in clause 156, page 83, line 36, leave out ‘a local planning authority must have’.
No. 34, in clause 156, page 83, line 37, after ‘regard’, insert ‘must be had’.
No. 35, in clause 156, page 83, line 40, leave out from beginning to end of line 1 on page 84.
Government amendment No. 479
Clause stand part.

Parmjit Dhanda: This clause will enable a local planning authority to make a minor change to a planning permission that relates to land in its area where it is satisfied that the change is not a material one. This provision is necessary because, when developers seek to implement their permissions, they can often find that minor changes to their original proposals are necessary. Such issues are particularly common for complex, large-scale developments that take long periods to be built.
Examples might include slightly moving the entrance to an office or providing a new fire escape, because of changes to building regulations that have occurred during the development process. In the past, such minor changes were dealt with locally, with planning authorities making a judgment about whether they were so minor that they could be allowed without any formal procedure. We are taking advantage of and introducing such a formal procedure under the clause.
However, case law has thrown into doubt whether such an approach, which existed in the past, is lawful and acceptable. That has led to widespread uncertainty for both planning authorities and developers, and a generally more cautious approach has led to even minor and insignificant changes requiring a new full planning application. All we seek to do is to reintroduce a little practical flexibility into the system.

David Curry: How many times could a developer come back for a minor modification in the course of a development? I know of circumstances in my constituency where planning permission has been granted and then a series of small incremental changes have been made that end up changing the shape of the development significantly. Local residents, having perhaps acquiesced to or been willing to accept an original planning permission, have ended up with something radically different from what they had consented to in the first place. They had no opportunity to intervene in the mean time. How many times can that happen and how much does it add up to?

Parmjit Dhanda: The right hon. Gentleman makes an interesting point. No two developments are the same, and when I say “minor” I mean it. That is part of the reason that I gave a couple of specific examples, such as fire escapes due to changes to building regulations. Such really minor matters have resulted in big planning applications being lost entirely. I hear what the right hon. Gentleman says, but it is a bit like asking me how long a piece of string is, because no two developments are the same.

David Curry: My point was about a series of changes being applied for in respect of a single development, which have the cumulative effect of changing significantly the nature of the development. Is that dealt with in the clause, or could developers use salami tactics?

Parmjit Dhanda: I assure the right hon. Gentleman that the clause is not about changes to a development that result in a material change. It is about very minor changes. I hope that that reassures him. I also ask members of the Committee to remember that a similar provision has existed in Scotland for about a quarter of a century and has worked well.
The Government amendments will provide further clarity as to how the power will work. Amendments Nos. 477 and 478 are technical drafting changes that I trust will be totally uncontentious. Government amendment No. 479 makes a number of changes to the clause, first by inserting proposed new subsection (4) to proposed new section 96A, requiring that the power in the clause can be exercised only by a person with an interest in the land or someone acting on their behalf. I note that Opposition Members’ amendment No. 30 is intended to achieve a similar outcome, so I hope that that will allay their concerns.
Secondly, the amendment will add proposed new subsection (5) to proposed new section 96A, so that an application to make a non-material change—I emphasise that point again—must be in the form and manner prescribed. It is intended that, as with other planning-related applications, the standard application form will be used. Thirdly, proposed new subsection (6) will allow us to prescribe how such an application should be publicised and who should be consulted as part of the process.
Fourthly, there are amendments to section 5(3) and schedule 1 to the 1990 Act, providing that a local authority can make a change under the provision only if it is the local planning authority for the planning permission in question. Opposition amendment No. 31 is intended to achieve a similar outcome, so perhaps we are aligned in our thinking. Finally, section 69 of the 1990 Act will be amended to require that a request for a non-material change be recorded on the planning register. I hope that we can agree that those are sensible changes to a sensible provision, and that Opposition Members will not press amendments Nos. 30 and 31.

Bob Neill: The Minister has shortened what I need to say. He is right that we have the same objective. Lest anyone should wonder why the matter is of significance, there are situations such as that of the Thames Gateway involving urban development corporations, national parks and so on, which not be the local planning authority. I am grateful to the Minister for having dealt with such issues. Some of our amendments were drafted similarly, with objectives that I accept have been achieved by the Government amendments.
Amendment No. 35 is slightly different and harks back to the concern expressed by my right hon. Friend the Member for Skipton and Ripon. In the first two proposed new subsections, the starting proposition was that any changes should not be material. However, the concern is that a number of changes can have a significant cumulative effect. Proposed new subsection 96A(3) worries me, because read together with the other provisions it suggests that new conditions can be imposed or old ones removed or altered if they are not material. I am trying to think of circumstances in which they would not be material. If they were not material, why were they imposed in the first place? That is the part that seems odd and tautologous. I am worried about the risk of what are asserted to be non-material conditions being changed, as it is difficult to think of a non-material condition. I would be grateful if the Minister could help us on that.

Parmjit Dhanda: I have given an example on a couple of occasions about fire doors. It is a good example. There could be a development that is working but then a new set of building regulations is introduced. We cannot have a set of circumstances in which the entire process must begin again with the planning application. That has happened; I have an example of it that I am happy to share with the hon. Gentleman, but I do not want to bore him.
The hon. Gentleman mentioned amendment No. 35, which would remove the ability to make non-material changes by removing or altering existing conditions or imposing new ones. It would prevent a local planning authority from making minor changes to an existing planning condition, unless there was a further formal planning condition. We would not want to go through such a process. However, were it accepted that the kind of non-material changes to a planning permission that I have outlined should be allowed, the planning authority would be best placed to decide what is material or not. There seems little reason to impose a restriction that would prevent a minor change to a planning condition. While it is accepted that section 73 of the 1990 Act provides an existing mechanism to vary a condition, an alternative route to making minor changes should be allowed. On the record, I want to reinforce the point that we are talking about really minor changes.

Bob Neill: I am grateful to the Minister for reinforcing that point. I understand his point about minor variations to conditions, and the ability to amend a condition, but I am still interested to think of circumstances in which it would be appropriate to remove a condition completely or to impose a wholly new one. I understand and see the good sense in changing a condition for the reasons that he has explained. However, I am concerned that we do not open up the flood gates, beyond that which he would wish to see, by allowing the complete removal of a condition or the imposition of a wholly new one. Is the process to be circumscribed to allow an old condition to be removed but a similar one to be imposed, so that the package of conditions remains the same? That might make sense. Were a condition removed entirely, one might ask why it was there in the first place if it was sufficiently immaterial to be removed. That is a different matter from the Minister’s valid point about making a minor amendment to a remaining condition.

Parmjit Dhanda: I do not have a great deal to add other than that local authorities who have worked with developers to get some of the important developments up and running have brought the matter to our attention. They have had difficulties, and in the past have done this in an informal and ad hoc way. The clause is necessary to remove that ad hoc and informal way of reaching the same position, because legal challenges have resulted in major developments being knocked back to square one.

Bob Neill: We have not had a Division all afternoon, and I am not about to ask for one now. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: No. 478, in clause 156, page 83, line 30, leave out ‘of TCPA 1990’.
No. 479, in clause 156, page 84, line 1, at end add—
‘(4) The power conferred by subsection (1) may be exercised only on an application made by or on behalf of a person with an interest in the land to which the planning permission relates.
(5) An application under subsection (4) must be made in the form and manner prescribed by development order.
(6) A local planning authority must comply with such requirements as may be prescribed by development order as to consultation and publicity in relation to the exercise of the power conferred by subsection (1).
(3) In section 5(3) (purposes for which Broads Authority is the sole local district planning authority) for “97” substitute “96A”.
(4) In section 69(1) (register of applications etc)—
(a) after paragraph (a) insert—
“(aa) applications for non-material changes to planning permission under section 96A;”,
(b) in subsection (2)(a) after “(1)(a)” insert “and (aa)”, and
(c) in subsection (4) after “(1)(a)” insert “, (aa)”.
(5) In section 286(1) (challenges to validity on ground of authority’s powers) after paragraph (a) insert—
“(aa) an application for non-material changes to planning permission under section 96A;”.
(6) In Schedule 1 (local planning authorities: distribution of functions), in paragraph 3(1), after paragraph (a) insert—
“(aa) applications for non-material changes to planning permission under section 96A;”.’.—[Mr. Dhanda.]

Clause 156, as amended, ordered to stand part of the Bill.

Clause 157

Tree preservation orders

Alun Michael: I beg to move amendment No. 439, in clause 157, page 87, line 24, at end insert—
‘(7A) In section 210 (penalties for non-compliance with tree preservation order)—
(a) for subsection (1) substitute—
“(1) If any person contravenes tree preservation regulations, he shall be guilty of an offence.
(1A) In proceedings for an offence under this section, it shall be a defence to prove the following matters—
(a) that works to the tree were urgently necessary in the interests of safety or health or for the preservation of the tree;
(b) that it was not practicable to secure safety or health or, as the case may be, the preservation of the tree by other means;
(c) that the works carried out were limited to the minimum measures immediately necessary; and
(d) that notice in writing justifying in detail the carrying out of the works was given to the local planning authority as soon as reasonably practicable.”, and
(b) omit subsection (4).’.

Eric Illsley: With this it will be convenient to discuss the following amendments: No. 440, in schedule 3, page 121, line 17, leave out sub-sub-paragraph (a).
No. 441, in schedule 3, page 121, line 26, at end insert ‘, and
(c) in the side-note and the heading above the section for “in conservation areas” substitute “not subject to tree preservation order”.’.
No. 442, in schedule 3, page 121, line 32, leave out paragraph 10 and insert—
‘10 In section 213 (duty to plant replacement tree in conservation area)—
(a) for the words from “at a time” to the end of the paragraph substitute “at a prescribed time”, and
(b) in the side-note, for the words after “controls”, substitute “under section 211”.’.
New clause 15—Register of trees
‘After section 210 of TCPA 1990 insert—
210A Register of trees of special interest
(1) The Secretary of State may compile and maintain a register of trees situated in England and appearing to him to be of special interest, or may approve with or without modification such a register compiled by other persons or bodies, and may amend any register so compiled or approved.
(2) The Welsh Ministers may compile and maintain a register of trees situated in Wales and appearing to them to be of special interest, or may approve with or without modifications such a register compiled by other persons or bodies, and may amend any register so compiled or approved.
(3) The Secretary of State or, as the case may be, the Welsh Ministers shall, as soon as practicable after including in the register an entry relating to any tree, notify the persons mentioned in subsection (4) of this section of the inclusion and send them a copy of the entry.
(4) The persons are—
(a) the owner and (if the owner is not the occupier) the occupier of the land on or over which the tree or any part of it is growing; and
(b) any local planning authority in whose area such land is situated.”’.
New clause 16—Protection of trees not subject to a tree preservation order
‘(1) In section 211 of the TCPA 1990 (preservation of trees in conservation areas), in subsection (2), after the words “in a conservation area” add “and to any other tree”.
(2) In section 212 (power to disapply section 211)—
(a) after subsection (2)(b), insert—
“(bb) trees in such other areas or descriptions of areas as may be so specified;”;
(b) in subsection (2)(c), before the word “size”, insert “description,”;
(c) after subsection (2), insert—
“(2A) Such regulations may, in particular, exempt from the application of section 211 any works to a tree whose felling would require a licence under the Forestry Act 1967.”; and
(d) omit subsection (4).’.

Alun Michael: Mr. Illsley, I have known you for more than 20 years as a vigorous and forthright Member of Parliament, so it is slightly odd to see you trapped in the Chairman’s role of complete neutrality. It is a real penance for a politician of your calibre. However, it does not prevent you from listening or indeed reading. I therefore want to lighten your hours on the Planning Bill by handing you a copy of “The Heritage Trees: Britain and Northern Ireland”.

Parmjit Dhanda: Is it a signed copy?

Alun Michael: It is indeed. Mr. Illsley, you will find the volume entertaining and illuminating. It is evidence of the rich, national treasury that we have in our wild variety of ancient and precious trees and of the need for reform of the tree preservation order system. In recent times, some nationally important trees have been lost such as T’yr Ash oak, which was the largest oak by volume in Wales with a girth of more than 6 m. It was estimated to be about 375 years old. A large limb fell from the crown. The owner became concerned about the risk of further collapse and arranged for it to be felled. It was not protected by a tree preservation order. A good deal of campaigning took place to protect the tree because it was seen as a significant loss to the local community, members of which wanted an investigation into alternatives, such as whether retention was possible. Unfortunately—although it might have had reasons—the Brecon Beacons national park authority would not put a preservation order on the tree, despite an independent arboricultural consultant’s report that the tree could be managed to reduce the risk to acceptable levels. The tree has now been felled and lost for ever.
However, given that some trees throughout the country with little wider value are protected by tree preservation orders, I hope that the Minister will be willing to accept the amendments and new clauses. He is a reasonable and caring man so I am sure that he will listen to my suggestions or table his own amendments. There is always a belief, in any Ministry, that it can draft provisions slightly better than a Back Bencher can. I leave open the possibility of the Minister introducing, on Report, amendments that would have the same final impact.
I thank the Woodland Trust, the Tree Council and Charles Mynors, a barrister with considerable experience and the author of an authoritative book on these issues, for their assistance. I am also grateful to the Minister for enabling me to explore relevant issues with him and his officials before the debate so that we could move forward constructively. That sort of engagement is extremely valuable.
One problem with tree preservation orders is that they can be used in various ways. Some councillors use them rarely, and only to protect the most valuable trees, whereas others use them as a device to protect trees of little value, as with a recent order in Dorset to protect an unremarkable front-garden tree in an ordinary suburban street. Some use them more cynically as a device to prevent development. There was a recent order in Essex on a back-garden cherry tree that happened to be at the entrance to a proposed housing scheme. Trees are sometimes protected by reference to groups or to areas of land, which means that the group may contain an individual tree of little amenity value. For example, in Liverpool, there are several area orders, each covering a large housing estate.
Against that background, it is not surprising that there are unauthorised works on trees in a wide variety of circumstances. An unprincipled developer may fell a beautiful specimen tree to unlock a development site, or a householder may lop a branch off an unremarkable back-garden tree because it is shedding leaves, which block the gutter. Between those two examples, there is a whole range of situations, varying as to the number of trees involved and the amenity value of each. The extent of the works carried out varies between felling and pruning, and the culpability of those responsible varies accordingly.
The amendments would replace the two current offences with a single offence. When dealing with offences, the courts always have the power, and, indeed, the duty, to tailor the sentence to fit the circumstances of the case. In an either-way offence—one that is triable in the Crown court or before a magistrate; the parties have the option of going to either forum—a minor breach will usually attract a trivial fine from a magistrate. If either party is silly enough to go to Crown court, the eventual penalty will be significantly larger. Major breaches result in larger fines in the Crown court, and any significant element of development gain may be taken into account. That is reflected in practice.
There is similar legislation relating to listed buildings, with a single offence of unauthorised works that is triable either way, and the maximum penalty may be imposed . There have been more than 100 convictions since the existing penalties were introduced in 1991. Of those cases, 16 were tried in the Crown court, with only two resulting in a fine of more than £20,000. The remaining 85 cases were heard by magistrates. That suggests that the creation of a single offence would not result in trivial offences being at risk of excessive punishment, which has, until now, been the reasoning behind the refusal to move from two offences to one. Indeed, if anything, the penalties are too low to put off determined offenders.
There is a wholly artificial distinction between major offences—those that result in the death of the tree or seem likely to do so—and minor offences. For the former, there is an unlimited maximum fine. For the latter, the maximum is only £20,000. That leads to a somewhat arid debate on which category properly applies. That is particularly unprofitable when works are carried out on more than one tree, with some in each category. Sometimes, authorities choose not to prosecute the more serious offence because they cannot be sure that the tree will die, but they do not prosecute the minor offence, either, because the maximum penalty is perceived to be small.
Turning to the proposed dangerous works exemption, there is an exemption in section 198(6) of the 1990 Act, which means that consent is not required, first, for works to trees that are dying, dead or dangerous and secondly, so far as is necessary, for the prevention of nuisance. The first exemption is significantly wider than the corresponding exemption in Scotland, which exempts only works that are necessary to prevent a danger. Similar provisions apply when obtaining a felling licence under the Forestry Act 1991. In their 1994 review of tree preservation order legislation, the Government proposed to limit the dangerous trees exemption so that in future it would allow only the minimum works necessary to remove the cause of the danger. If only part of a tree was dangerous, only that part could be removed. My proposal would enable the Government to honour that commitment. I am aware that it was a previous Conservative Government who made it and failed to deliver on it, but I am sure that Ministers would agree that it was a reasonable one at the time. It is just a pity that it was not delivered.
The Bill simply repeals section 198(6) of the 1990 Act. The replacement provisions will enable the Secretary of State or Welsh Ministers to make regulations to cover almost anything, but which do not relate specifically to situations that are currently exempt. The proposed provision makes it plain that works to alleviate a danger are always exempt from the need for consent. It also makes it clear that the exemption cannot, and must not, be misused or abused, and it justifies the carrying-out of the minimum works immediately necessary—again, that is exactly in line with listed buildings legislation, where the corresponding exemption was tightened up in 1986 with precisely the same aim as my amendments.
The second part of the exemption in section 198(6) of the 1990 Act, for works to abate a nuisance, was considered in the Court of Appeal, in the case Perrin v. Northampton, just before Christmas. The scope of that exemption is now very uncertain. The right way to deal with that dilemma is to remove that exemption altogether, which would be a matter for regulations that would be made in due course. It would also be prudent to lose the “dead or dying” exemption altogether—again, as in Scotland—but that, too, would be a matter for the regulations. If a tree is dead or dying, and if it is dangerous, works could be carried out without consent—because of the danger, not because it is dead or dying. Otherwise, there is no logic in the exemption. For all those reasons, it would be sensible to have the “danger” exemption tightly drafted in primary legislation, rather than leave it to the regulations.
The new clauses propose a register of trees which, following discussions, I have tried to make as simple as possible. It is not a requirement, and the responsibility would not be placed on the shoulders of a specific body. In the past, we have considered giving responsibility for such a register to English Heritage or equivalent bodies in Wales, or other alternatives such as the Countryside Agency or Natural England. I do not think that it is necessary for us to take such decisions. Indeed, an agency outside Government, or a voluntary organisation, may be the most appropriate body to draw up the register, which Ministers would then recognise. That would be the best of both worlds.
The amendments would provide flexibility—they give the Government the capacity to recognise the importance of those trees, some of which are visited by thousands of people every year and are a part of our very valuable heritage—without creating a bureaucracy, so to speak, or placing additional burdens, particularly financial ones on Government agencies. It is envisaged that works to register trees would simply be notified to the planning authority, as applies to non-TPO trees, in conservation areas. That pattern already exists, and it works perfectly well, as those of us with experience of conservation know. The new procedure would actually lead to a lighter touch.
Planning authorities use tree preservation orders in a wide variety of situations, so no consistent standard applies nationally. That should be compared with measures to protect historic buildings, which are listed by the Secretary of State or Welsh Ministers on the advice of English Heritage or Cadw on the basis of nationally applied standards. The production of a simple, straightforward and nationally supervised register that lists only the most valuable trees—it is therefore not a big bureaucratic list—would allow the protection of those particularly valuable trees and introduce a mark of excellence for trees of national importance, as opposed to those selected by local authorities merely because they are quite nice. There would be no question of trees being designated on the basis of groups in certain areas.
Finally, unless there is a guarantee that the dead or dying exemption is removed, planning authorities often decline to make tree preservation orders on veteran or ancient trees, as their removal might not require consent. While a register could be produced and maintained on a non-statutory basis, as is the case with the register of historic parks and gardens in Wales, a statutory register, as used in England, would have more weight, for example, as a material consideration in determining planning applications. I believe that the protection of our most precious trees, as illustrated in that book, and a recognition of the risk to them, as illustrated in the case that I mentioned and in other cases, would be a considerable step forward in recognising an important part of our national heritage, and I commend the amendment and the new clauses to the Committee.

Jacqui Lait: I congratulate the right hon. Gentleman on tabling the amendments and new clauses, and I join him in hoping that the Government will accept them, particularly the new clauses. I congratulate the Woodland Trust, both on its initiative and on the work that it is already doing to seek out the ancient trees that it believes should be registered. I have never come across an organisation so open to being the registering body.
If the Government do not accept the new clauses, I hope that they accept the argument and introduce with their own proposals. I understand in principle why the Government want to move tree preservation orders into a regulatory system, but I am concerned that it is a centralising measure. Equally, as one travels around the country, one is aware that different local authorities operate wide and varying standards on which trees should be covered by tree preservation orders. However, I am concerned by about the scope of the new regulatory structure and the trees that it would cover, so I hope that the Government will assure us that it will not be drawn as broadly as possible, otherwise we will find unremarkable trees listed with preservation orders when there is absolutely no need to do so.
I also wish to know whether the Government think that all trees in town parks should be listed, remarkable or not. Anyone who has lived anywhere near a sycamore knows precisely how many small sycamores spring up each year and the sheer work that goes into ensuring that they do not grow any more. Having said that, those few that grow to full height are magnificent specimens, so one has to be reasonable-minded about how to approach the regulation of trees.

Elfyn Llwyd: I once dealt with a tree preservation order on some sycamore trees, and I recall that a sycamore tree is treated as a weed, not a tree.

Jacqui Lait: As someone who contends with the problem on an annual basis, I agree that they are weeds. However, a full-grown sycamore is a magnificent tree, and one would not wish such a tree in a key setting to be omitted from the listing. Given that sycamores grow as weeds, however, there are times when one would not wish to make an order.
Inadvertently, as so often happens with regulation, a completely inappropriate class of use comes in. That is my concern with the transfer of tree preservation orders, which are decided locally, to a national system of regulations.

David Curry: I am sympathetic to what the right hon. Gentleman describes, but I should like a couple of reassurances that, when an organisation wishes to restore, for example, an historic garden, the tree preservation order will not prevent it from restoring the garden to what it looked like, for example, in the 18th century. In my constituency, near the village of Grewelthorpe, there is a site called Hackfall, where the ground descends to the River Ure. In the 18th century, it was a famous garden—so famous that Catherine the Great had a dinner service with scenes from Hackfall printed on it. It is now hopelessly overgrown, but I think that the Woodland Trust is now the owner, and the land is gradually being restored.
Perhaps even more famous is Fountains abbey, including the magnificent Studley Royal water garden, which hon. Members from Leeds will know about. The garden was laid out by John Aislabie, who was Chancellor of the Exchequer and made a packet from the South Sea bubble, which just goes to show that ill-gotten gains can be put to uses that benefit generations to come. The National Trust has restored magnificently that old 18th century water garden, which was a huge task.
I want to be certain that, if organisations seek to restore historic gardens, for example, and that necessitates the removal of plants, vegetation and trees that have subsequently grown up when the garden was neglected or simply became overgrown, nothing that is proposed will stand in the way of the re-creation of those magnificent areas. One of the greatest cultural achievements of this country is its gardens.

Parmjit Dhanda: I congratulate my right hon. Friend the Member for Cardiff, South and Penarth and the Woodland Trust on the work that they have collectively put into the amendments and the new clauses. Under the present tree preservation order system, a maximum fine of £20,000 may be imposed when protected trees are felled or otherwise destroyed without consent. A lower fine of up to £2,500 is payable for other contraventions of the system, such as the failure to obtain the local planning authority’s consent before pruning a tree.
We need to take a closer look at my right hon. Friend’s amendments Nos. 439 and 440, because we believe that the two-tier approach is the most proportionate way forward. It is right that Parliament should recognise that some offences are demonstrably graver than others and reflect that in our legislation. A fine of £2,500 is not insignificant; it is the equivalent of level 4 on the standard scale that we have talked so much about over the past few weeks.
Some say that £2,500 is nothing to an unscrupulous developer who is keen to maximise the value of a site, but let us remember that we are talking about only the unauthorised pruning of trees. The unauthorised cutting down of trees is subject to a maximum fine of £20,000—so, too, is any excessive pruning that is so badly executed that it effectively destroys the tree as an amenity worth preserving. Case law has made that clear, too.
The amendments would have a further purpose. Under amendment No. 439, anyone accused of unauthorised tree works would have a defence if they could show that the works were urgently necessary on grounds of health or safety and limited to the minimum needed under the circumstances. I hope I can persuade my right hon. Friend that these matters are best considered not in primary legislation, but in regulations, and I hope he will continue to liaise and work with our officials and with the Woodland Trust.
The Bill includes the power to introduce regulations, including a power to make prohibited works subject to exceptions, which is something the amendments mention. I assure my right hon. Friend that we will carefully consider the objectives of his amendments when preparing and consulting on those regulations. Most people would agree that exempt works to protected trees, in the interests of health or safety, should not be open-ended; they should be limited to what is needed to deal with the problem. We will give careful thought to all this and consult widely on the detail to ensure that we get the wording right.
Turning to new clause 16, together with amendments Nos. 441 and 442, under the current system, trees that are situated in conservation areas have a form of blanket protection. Before carrying out felling or pruning works to such trees, one must first give the local planning authority six weeks’ notice, thus giving it the opportunity to consider whether the trees merit a tree preservation order. Local planning authorities receive, on average, 120 such notices each year, resulting in an average of only three new tree preservation orders per authority.
The amendments would extend the six week notification system to all trees in England and Wales, whether on private or public land. On the face of it, therefore, subject to whatever exceptions were included in the regulations, the felling or pruning of all trees would become subject to local authority control. However, we do not believe that the current system is failing. The last comprehensive review of the system concluded that it had stood the test of time and that its basic framework should be retained.
The extension of a blanket control for trees on the scale provided for in new clause 16 would impose significant new burdens on local authorities. The 120 or so notices received under the current system would end up increasing very significantly indeed; yet under the current system, only one in 40 notices results in a tree preservation order. I appreciate that the new clause would allow exceptions to the rule, which would be set out in regulations, and that those exceptions might reduce the number of trees subject to blanket protection. However, it is important that we do not extend the controls, and thus new restrictions on landowners, without first being satisfied that they are necessary.
Turning to new clause 15, in our view a good framework for protecting special trees is already provided under the tree preservation order system, the felling licence system and our system for safeguarding sites of special scientific interest. Before embracing an additional statutory designation, we would have to be satisfied that current statutory systems were deficient. We are not convinced that they are deficient. Existing sites of special scientific interest include many of the most important concentrations of veteran trees and ancient woodlands, such as the New forest, Sherwood forest and Windsor great park. Criteria have also been developed that enable the designation of such sites of special scientific interest solely on the basis of a concentrated veteran tree population.
Turning to the tree preservation order system, I am conscious that there are those who say that it is ill equipped to protect some of the most outstanding veteran trees. I hope that I can reassure my right hon. Friend. First, when considering whether to make preservation orders, local authorities have a wide discretion. In my Department’s view a tree’s historical or cultural importance may be sufficient to justify making a tree preservation order. Many veteran trees are important for their historical or cultural associations.
Secondly, it is said that special trees may not be protected by tree preservation orders unless they are at risk. Let us be clear: the legislation states that an order may be made where it appears expedient in the interest of the amenity. There is no reference to trees having to be at risk. If it is helpful to my right hon. Friend, we will look again at our guidance on the issue to clarify that point.
Finally, it is said that veteran trees are compromised because, under the current legislation, consent is not needed to carry out works to trees that are dead or dying or have become dangerous. That is a valid concern. At present, the exemption is in the 1990 Act, so we have had limited opportunity to reform it, but the Bill provides us with the opportunity to do so. Our favoured approach is to move the exemption to regulations, and the Bill makes provision for us to do so.
Again, I assure my right hon. Friend that we will look critically at the exemption when we develop the regulations, with a view to ensuring that adequate provision is made for the protection of veteran trees. Therefore, a national register, which of itself would provide no additional protection, is not necessary. I applaud the work of the Woodland Trust and others in taking forward their ancient tree hunt, which seeks to identify veteran trees around the UK, and in securing the long-term protection of such trees. However, in our view, that is best pursued with local authorities and others who already have the statutory powers to take action.
I therefore hope that my right hon. Friend will withdraw his amendments, taking on board my comments in the spirit that they are intended. Let us engage further with the Woodland Trust and others who have an interest in these issues, to ensure that we get the regulations absolutely right.

Alun Michael: I am grateful to my hon. Friend. He has obviously thought deeply about the issues raised in my amendments and new clauses, and he has clearly taken the trouble, with his officials, to engage with the issues. I think that I can describe the response as sympathetic, but it does not perhaps move as far as I might have hoped. However, he held out the prospect of further engagement.
I should be grateful if he agreed to meet me, perhaps with the Woodland Trust, to discuss the matter further, rather than detaining the Committee at this stage. I hope that he would be able to persuade me in such a meeting—he is on the verge of doing so now—that he intends to deal with most of the objectives absolutely in his regulations. But I also hope that I could persuade him further on the idea of the single offence and the value of the register.

Parmjit Dhanda: My right hon. Friend is very persuasive, and I would be happy to meet him. I also have a copy of that book, for which I am very grateful, and it is signed.

Alun Michael: I am grateful to my hon. Friend. Applications in triplicate from any other member of the Committee are invited. On the basis of my hon. Friend’s willingness to engage further, I do not wish to detain the Committee at this stage. With a view perhaps to tabling amendments on Report in the light of further discussion or to there being an initiative from the Minister by then, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 157 ordered to stand part of the Bill.

Schedule 3 agreed to.

Clause 158 and 159 ordered to stand part of the Bill.

Schedule 4 agreed to.

Clause 160

Determination of procedure for certain appeals

Amendment proposed: No. 480, in clause 160, page 88, line 8, leave out ‘appeal’.—[Mr. Dhanda.]

Eric Illsley: With this it will be convenient to discuss the following: Government amendments Nos. 481 to 512.
Clause stand part.
Government amendments Nos. 514 to 534.
Schedule 5 be the Fifth schedule to the Bill.

Clive Betts: I have one question for my hon. Friend, to which I am sure that there is an answer. I scratched my head a little on reading Government amendment No. 493 because it ends with provision to
“amend, repeal or revoke any provision made by or under this Act or by or under any other Act.”
That is a little wide-ranging. It appears to be saying that once the Committee has deliberated and the House has voted, the Minister can do anything that he wants about anything. Have I got that wrong?

Parmjit Dhanda: I dare say that my hon. Friend has got that wrong. I do not have that amendment before me, but I think that we will discuss elements of that when discussing the next group of Opposition amendments. I hope that that will add more clarity.

Amendment agreed to.

Amendments made: No. 481, in clause 160, page 88, line 9, leave out ‘appeals’ and insert ‘proceedings’.
No. 482, in clause 160, page 88, line 11, leave out ‘an appeal’ and insert ‘proceedings’.
No. 483, in clause 160, page 88, line 11, leave out ‘is’ and insert ‘are’.
No. 484, in clause 160, page 88, line 12, leave out ‘appeal’ and insert ‘proceedings’.—[Mr. Dhanda.]

Daniel Rogerson: I beg to move amendment No. 585, in clause 160, page 88, line 17, leave out paragraph (c).

Eric Illsley: With this it will be convenient to discuss the following amendments: No. 586, in clause 160, page 89, line 10, leave out paragraph (c).
No. 587, in clause 160, page 89, line 38, leave out paragraph (c).

Daniel Rogerson: The amendments arose from a discussion with the Town and Country Planning Association regarding the issue of appeals being conducted through submissions by writing, rather than by an inquiry or hearing. I share its concern. That tendency is an unhappy one because it does not allow for the sort of cross-examination that we have discussed under previous amendments tabled by the hon. Member for Bromley and Chislehurst. Perhaps it is more efficient for the Planning Inspectorate to deal with written evidence, but it does not necessarily mean that it is the best way of getting appellants’ views across. I wanted to see whether the Minister is prepared to accept the point and to justify widening the use of representation by advisers as the basis for an appeal, as opposed to the more conventional methods through a local inquiry or a hearing.

Bob Neill: I broadly support the thrust of the hon. Gentleman’s observations. The current cope under certain circumstances for agreement to be made and for further appeals to be dealt with through written representations is adequate. We do not wish to move further than that because generally we think that it is an option that should be available to the parties. As we have stressed throughout the Committee, when developments deeply affect people’s livelihoods, their communities and sometimes their homes, the right to put their own case in their own way and to cross-examine and make representations should not be lightly removed. We do not think that the justification is made.

Parmjit Dhanda: The effect of the clause is to ensure that the Planning Inspectorate will use its delegated powers to determine the appropriate procedure for each case on behalf of the Secretary of State. The current system allows the principal parties to select the procedure. However, in appeals appellants often choose a hearing for cases that could just as appropriately be determined via the written representations method or an inquiry for cases that could be considered at a hearing.
For example, an appellant might insist on an inquiry or a hearing for an application relating to a boundary wall or a dormer roof extension when the vast majority of such cases do not raise complex policy issues and can be effectively dealt with by written representations instead. We want to ensure that the procedure used is proportionate to the complexity of the subject matter, hence this clause. Cases that do not need an oral hearing could be fairly and effectively handled by means of written representations with no loss of quality or equity to the process and the decision. The outcome will depend on how convincing the inspector finds the planning merits, not the method of their representation.
Clause 160 would enable the Planning Inspectorate, acting on behalf of the Secretary of State, to apply published criteria which Ministers have approved to determine the most appropriate appeals procedure. The criteria would be consulted on and regularly reviewed. They would ensure that any case that is complex, controversial, and thus would benefit from a hearing or an inquiry, would be dealt with in that way. They would also ensure that people in vulnerable groups were given a fair opportunity to put their case, which might mean that a hearing or inquiry would be appropriate even when it would not normally be justified by the complexity of the case.
The measure in its entirety, with the option of determination by written representations, is crucial to the delivery of a more proportionate and efficient system. We estimate that it would yield cost savings of around £2 million a year to the Planning Inspectorate and £700,000 a year to local authorities. Applicants and appellants would benefit from a reduction in the time taken to determine their cases. I therefore propose that the amendments should be rejected.

Daniel Rogerson: I am grateful to the Minister for his clarification. It is important to get it on the record that there is a hierarchy of forms of appeal. In coming to a decision as to which one would be appropriate, regard will be given to the complexity and importance of the issue. Hearings and inquiries would be very much the norm for complex and important cases. I am somewhat reassured. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: No. 485, in clause 160, page 88, line 19, leave out ‘an appeal’ and insert ‘proceedings’.
No. 486, in clause 160, page 88, line 20, leave out from ‘period’ to end of line 21.
No. 487, in clause 160, page 88, line 23, leave out ‘appeal is’ and insert ‘proceedings are’.
No. 488, in clause 160, page 88, line 25, after ‘appellant’ insert
‘or applicant (as the case may be)’.
No. 489, in clause 160, page 88, line 29, at end insert—
‘(aa) an application referred to the Secretary of State under section 77 instead of being dealt with by a local planning authority in England;’.
No. 490, in clause 160, page 88, line 38, leave out ‘an appeal if it is’ and insert ‘proceedings if they are’.
No. 491, in clause 160, page 88, line 39, leave out ‘an appeal’ and insert ‘proceedings’.
No. 492, in clause 160, page 88, line 40, leave out ‘it’ and insert ‘the proceedings’.
No. 493, in clause 160, page 88, line 41, at end insert—
‘(9) The Secretary of State may by order amend subsection (7) to—
(a) add proceedings to, or remove proceedings from, the list of proceedings to which this section applies, or
(b) otherwise modify the descriptions of proceedings to which this section applies.
(10) An order under subsection (9) may—
(a) contain incidental, supplementary, consequential, transitional and transitory provision and savings;
(b) amend, repeal or revoke any provision made by or under this Act or by or under any other Act.”’
No. 494, in clause 160, page 89, line 2, leave out ‘appeals’ and insert ‘proceedings’.
No. 495, in clause 160, page 89, line 4, leave out ‘an appeal’ and insert ‘proceedings’.
No. 496, in clause 160, page 89, line 4, leave out ‘is’ and insert ‘are’.
No. 497, in clause 160, page 89, line 5, leave out ‘appeal’ and insert ‘proceedings’.
No. 498, in clause 160, page 89, line 12, leave out ‘an appeal’ and insert ‘proceedings’.
No. 499, in clause 160, page 89, line 13, leave out from ‘period’ to end of line 14.
No. 500, in clause 160, page 89, line 16, leave out ‘appeal is’ and insert ‘proceedings are’.
No. 501, in clause 160, page 89, line 18, after ‘appellant’, insert
‘or applicant (as the case may be)’.
No. 502, in clause 160, page 89, line 22, at end insert—
‘(aa) an application referred to the Secretary of State under section 12 instead of being dealt with by a local planning authority in England;’.
No. 503, in clause 160, page 89, line 27, at end insert—
‘(8) The Secretary of State may by order amend subsection (7) to—
(a) add proceedings under this Act to, or remove proceedings under this Act from, the list of proceedings to which this section applies, or
(b) otherwise modify the descriptions of proceedings under this Act to which this section applies.
(9) An order under subsection (8) may—
(a) contain incidental, supplementary, consequential, transitional and transitory provision and savings;
(b) amend, repeal or revoke any provision made by or under this Act or by or under any other Act.”’.
No. 504, in clause 160, page 89, line 29, leave out ‘appeal’ and insert ‘certain proceedings’.
No. 505, in clause 160, page 89, line 31, leave out from ‘which’ to ‘to’ in line 32 and insert
‘proceedings to which this section applies are’.
No. 506, in clause 160, page 89, line 33, leave out ‘appeal’ and insert ‘proceedings’.
No. 507, in clause 160, page 89, line 40, leave out ‘an appeal’ and insert ‘proceedings’.
No. 508, in clause 160, page 89, line 41, leave out from ‘period’ to end of line 42.
No. 509, in clause 160, page 90, line 2, leave out ‘appeal is’ and insert ‘proceedings are’.
No. 510, in clause 160, page 90, line 4, after ‘appellant’ insert
‘or applicant (as the case may be)’.
No. 511, in clause 160, page 90, line 7, at end insert—
‘(7) This section applies to—
(a) an application referred to the Secretary of State under section 20 instead of being dealt with by a hazardous substances authority in England;
(b) an appeal under section 21 against a decision of a hazardous substances authority in England.
(8) The Secretary of State may by order amend subsection (7) to—
(a) add proceedings under this Act to, or remove proceedings under this Act from, the list of proceedings to which this section applies, or
(b) otherwise modify the descriptions of proceedings under this Act to which this section applies.
(9) An order under subsection (8) may—
(a) contain incidental, supplementary, consequential, transitional and transitory provision and savings;
(b) amend, repeal or revoke any provision made by or under this Act or by or under any other Act.
(10) The power to make an order under subsection (8) is exercisable by statutory instrument.
(11) No order may be made under subsection (8) unless a draft of the instrument containing the order has been laid before, and approved by resolution of, each House of Parliament.’.
No. 512, in clause 160, page 90, line 8, leave out ‘appeals’ and insert ‘proceedings’.—[Mr. Dhanda.]

Clause 160, as amended, ordered to stand part of the Bill.

Schedule 5

Further provisions as to the procedure for certain appeals

Amendments made: No. 514, in schedule 5, page 124, line 38, at end insert—
‘1A In section 77 (reference of applications to Secretary of State) for subsection (6) substitute—
“(6) Subsection (5) does not apply to—
(a) an application for planning permission referred to a Planning Inquiry Commission under section 101; or
(b) an application referred to the Secretary of State under this section instead of being dealt with by a local planning authority in England.”’.
No. 515, in schedule 5, page 125, line 36, leave out ‘involving an appeal’.
No. 516, in schedule 5, page 126, line 11, leave out ‘involving an appeal’.
No. 517, in schedule 5, page 126, line 12, leave out ‘is’ and insert ‘are’.
No. 518, in schedule 5, page 126, line 18, at end insert—
‘11A (1) Amend section 333 (regulations and orders) as follows.
(2) In subsection (4) for “and 319” substitute “, 319 and 319A(9)”.
(3) After subsection (5) insert—
“(5A) No order may be made under section 319A(9) unless a draft of the instrument containing the order has been laid before, and approved by resolution of, each House of Parliament.”’.
No. 519, in schedule 5, page 126, line 21, leave out sub-paragraph (2).
No. 520, in schedule 5, page 126, line 26, leave out ‘For sub-paragraph (5) of that paragraph’ and insert ‘In paragraph 2 for sub-paragraph (5)’.
No. 521, in schedule 5, page 126, line 31, at end insert—
‘(3A) After sub-paragraph (9) of that paragraph insert—
“(10) Sub-paragraph (9) does not apply to references to the Secretary of State in section 319A (powers and duties of the Secretary of State in relation to the determination of procedure for certain proceedings).”’.
No. 522, in schedule 5, page 126, line 37, at end insert—
‘(5A) In the case of an appeal to which section 319A applies, the Secretary of State must give the appellant, the local planning authority and any person who has made any representations mentioned in sub-paragraph (2) an opportunity to make further representations if the reasons for the direction raise matters with respect to which any of those persons have not made representations.”
(4A) In sub-paragraph (6) of that paragraph after “(4)” insert “or (5A)”.’.
No. 523, in schedule 5, page 127, line 2, at end insert—
‘13A In section 12 (reference of applications to Secretary of State) after subsection (4) insert—
“(4A) Subsection (4) does not apply to an application referred to the Secretary of State under this section instead of being dealt with by a local planning authority in England.”’.
No. 524, in schedule 5, page 127, line 23, at end insert—
‘19A (1) Amend section 93 (regulations and orders) as follows.
(2) In subsection (4) after “75(7)” insert “, 88D(8)”.
(3) After subsection (5) insert—
“(5A) No order may be made under section 88D(8) unless a draft of the instrument containing the order has been laid before, and approved by resolution of, each House of Parliament.”’.
No. 525, in schedule 5, page 127, line 26, leave out sub-paragraph (2).
No. 526, in schedule 5, page 127, line 30, leave out ‘After sub-paragraph (5) of that paragraph’ and insert ‘In paragraph 2 after sub-paragraph (4)’.
No. 527, in schedule 5, page 127, line 31, leave out ‘(5A)’ and insert ‘(4A)’.
No. 528, in schedule 5, page 127, line 32, at end insert—
‘(3A) After sub-paragraph (8) of that paragraph insert—
“(9) Sub-paragraph (8) does not apply to references to the Secretary of State in section 88D (powers and duties of the Secretary of State in relation to the determination of procedure for certain proceedings).”’.
No. 529, in schedule 5, page 127, line 35, at end insert—
‘(4B) In the case of an appeal to which section 88D applies, the Secretary of State must give the appellant, the local planning authority and any person who has made any representations mentioned in sub-paragraph (2) an opportunity to make further representations if the reasons for the direction raise matters with respect to which any of those persons have not made representations.”
(4A) In sub-paragraph (5) of that paragraph after “(4)” insert “or (4B)”.’.
No. 530, in schedule 5, page 128, line 4, at end insert—
‘21A In section 20 (reference of applications to Secretary of State) after subsection (4) insert—
“(4A) Subsection (4) does not apply to an application referred to the Secretary of State under this section instead of being dealt with by a hazardous substances authority in England.”’.
No. 531, in schedule 5, page 128, line 21, leave out sub-paragraphs (2) and (3).
No. 532, in schedule 5, page 128, line 25, leave out ‘After sub-paragraph (4) of that paragraph’ and insert ‘In paragraph 2 after sub-paragraph (4)’.
No. 533, in schedule 5, page 128, line 27, at end insert—
‘(4A) After sub-paragraph (8) of that paragraph insert—
“(9) Sub-paragraph (8) does not apply to references to the Secretary of State in section 21A (powers and duties of the Secretary of State in relation to the determination of procedure for certain proceedings).”’
No. 534, in schedule 5, page 128, line 30, at end insert—
‘(4B) In the case of an appeal to which section 21A applies, the Secretary of State must give the appellant, the hazardous substances authority and any person who has made any representations mentioned in sub-paragraph (2) an opportunity to make further representations if the reasons for the direction raise matters with respect to which any of those persons have not made representations.”
(5A) In sub-paragraph (5) of that paragraph after “(4)” insert “or (4B)”.’.—[Mr. Dhanda.]

Schedule 5, as amended, agreed to.

Clause 161 ordered to stand part of the Bill.

Clause 162

Fees for appeals

Bob Neill: I beg to move amendment No. 425, in clause 162, page 91, line 40, after ‘(2)’, insert
‘Except for an appeal under section 78 of this Act or section 20 of the Planning (Listed Buildings and Conservation Areas) Act 1990 against the failure of a local planning authority to take a planning decision,’.
I shall be brief. It is unjust to expect applicants to pay the local authority a fee when they are making the appeal only because the local authority failed to take a decision in the first place. It is a non-determination scenario and it is not equitable to expect the applicants to fork out on that basis. The amendment is designed to deal with that situation.

Parmjit Dhanda: I sympathise with what I perceive to be the underlying sentiment of the hon. Gentleman’s argument: that people should not have to pay for an appeal because a local authority fails to act. Although the Government cannot accept the amendment, our intention is to transfer part of the cost of running the appeals service, from the general taxpayer to those who might benefit. That principle is applicable, whatever the reason for an appeal or its eventual outcome.

Bob Neill: I am sorry, but I cannot accept the Minister’s reasoning. To my mind it is thoroughly unjust, whatever the reason, to expect an applicant to bear the cost of an appeal that they did not bring about. If the local authority fails to act, it is the local authority and the public purse that should bear the burden.

Parmjit Dhanda: If there is evidence that a local authority has acted unreasonably, which I think is the hon. Gentleman’s point, and it has done so in a non-determination case, the applicant can seek an award of costs from the Planning Inspectorate. The Planning Inspectorate intends to adopt a rigorous approach to such cases, to ensure that appellants are not unfairly penalised. I therefore believe that we can meet the objectives of the amendment and propose that it is rejected. At the same time, however, the principle of the clause is important.

Elfyn Llwyd: I thank the Minister for giving way, I know that the hour is rather late. Not so long ago—probably 10 or 12 years ago—the then Government introduced a measure that would allow the applicant in a successful planning appeal to recover his or her costs in full, emulating what the courts understand as “costs follow the event”. In one of the first awards of that kind in north Wales, I was responsible for acting for the appellant—I am not bragging, but pointing out that this measure winds the whole thing back. A person might now appeal against an action by the local authority, which might not be an unreasonable action but an action that is found to be invalid by the appeal tribunal. If the appellant then wins the appeal on ordinary grounds, without any unreasonable action by the other side, that appellant will have to bear his or her own costs. I am left dumbfounded by that idea, to be honest.

Parmjit Dhanda: I think that I have made clear the circumstances in which an applicant could get their money back, but at the same time the system must be sustainable to deal with the number of appeals currently in the system. The appellant has something to gain if they have paid to have their appeal and are successful. I appreciate that we have had a consensual afternoon, but we might have to agree to disagree on this particular issue.

Bob Neill: We will consider what has been said. I am still very unhappy, as is the hon. Member for Meirionnydd Nant Conwy. I am not seeking to get through the whole afternoon without a Division for the sake of it; we are close to pressing the amendment to a Division because we are unhappy with the principle of the proposal. When an applicant does not have any control over whether the planning authority determines or not, they should not have to run the risk of forking out for an appeal, in the hope that they can then claim the costs back. That is wrong, and unless there is further movement we will pursue the matter further on Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 162 ordered to stand part of the Bill.
Further consideration adjourned.—[Mr. Watts.]

Adjourned accordingly at four minutes past Seven o’clock till Thursday 31 January at Nine o’clock.